Volume 198 — Illinois Appellate Court Reports

<p>Error to the Criminal Court of Cook county; the Hon. Hugo Pam, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Marcus A. Kavanagh, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.</p>

<p>Abstract of the Decision.</p> <p>1. Carriers, § 464*—when evidence as to physical condition of passenger after accident admissible. In an action by a married woman to recover for injuries sustained while attempting to alight from defendant’s street "car, a motion to strike testimony tending to prove that plaintiff suffered from retroversion of the uterus is properly denied where the evidence tended to show that the conditions sought to be proved were the result of the accident.</p> <p>2. Negligence, § 191*—when question of fact. The question as to what constitutes negligence in a particular case is one of fact and not of law.</p> <p>3. Carriers, § 484*—when instruction as to duty of carrier towards passengers in starting cars erroneous. In an action to recover for personal injuries sustained while attempting to alight from defendant’s street car, an instruction that it is the duty of a common carrier of passengers to ascertain and know that no passenger is in the act of alighting before putting a car in motion, and that a failure to do so is actionable negligence, held reversible error, such instruction stating as a legal proposition that such conduct is negligence under all circumstances.</p>

<p>Error to the Municipal Court of Chicago; the Hon. John J. Rooney, Judge, presiding. Heard in this court at the October term, 1915.</p>

<p>Abstract of the Decision.</p> <p>1. Appeal and ebbob, § 1727*—when conclusions of Supreme Court on former appeal binding on Appellate Court. In. an action to recover for the wrongful death of plaintiff’s intestate, on a second appeal to the Appellate Court involving facts not materially different, the conclusions of the Supreme Court on the former appeal as to the contributory negligence of plaintiff’s intestate and the negligence of defendant are controlling.</p> <p>2. Street railroads, § 103*—when violation of ordinance insufficient to overcome contributory negligence. The contributory negligence of a pedestrian in attempting to cross two car tracks between two approaching cars, the view of which was unobstructed, and when under no necessity of doing so, will prevent recovery for his death, even though the cars were not equipped with fenders as required by ordinance.</p> <p>3. Street railroads, § 131*—when evidence sufficient to show compliance with fender ordinance. In an action against a street railroad to recover for the death of a pedestrian, evidence examined and held to show defendant’s compliance with the ordinance requiring fenders.</p>

<p>Error- to the Circuit Court of Cook county; the Hon. Benjamin W. Pope, Judge, presiding. Heard in this court at the October term, 1915.</p>

<p>Abstract of the Decision.</p> <p>1. Witnesses, § 106*—when evidence of conversation with deceased person admissible. Evidence of one not a party to a suit as to a conversation with an assistant manager of the corporation plaintiff who had died before the trial is admissible.</p> <p>2. Instructions, § 119*—when giving of instruction not founded on evidence improper. In an action of replevin, an instruction examined and held improper as not being founded on the evidence.</p> <p>3. ' Bills and notes, § 96*—when evidence insufficient to show valid agreement for extension of time of payment'. Evidence examined and held not to show a valid agreement for .the extension of the time for the payment of a note.</p> <p>4. Bills and notes, § 96*—what essential to extension of time for payment. An extension of the time for the payment of a note entered into before the note is due must be for a definite time.</p> <p>5. Replevin, § 156*—when order for return of mortgaged property not proper. In an action of replevin for property held under a chattel mortgage, where the evidence shows that at the time of the trial all the notes were due, that the condition of the mortgage was broken and plaintiff was entitled to possession of the mortgaged property, it is improper to 'order the return of the property.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. James C. Martin, Judge, presiding. Heard in this court at the October term, 1915.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Lockwood Honore, Judge, presiding. Heard in this court at the October term, 1915.</p>

<p>Municipal Court of Chicago, § 13*-wlten statement of claim insufficient. A statement of claim in an action of the first class ia the Municipal Court of Chicago, the material avermeats ot which are that "plaintiff's claim is for the value of goods appropriated by defendants of the kind and value as follows," setting out there-. after a list of certain personal property, is insufficient in that it does not state a cause of action coguizable by the courts under settled rules of procedure.</p>

<p>1. Cabbiebs, § 248*—when evidence sufficient to show written contract for carriage of live stock. In an action by a shipper of live stock against the carrier to recover for injuries alleged to have been caused to the stock by defendant’s negligence, plaintiff’s evidence examined and held to show that a written contract for the carriage of the stock had been entered into.</p> <p>2. Cabbiebs, § 248*—when introduction in evidence of written contract for carriage of live stock essential. In an action by a shipper of live stock against the carrier to recover for injuries alleged' to have been caused to the stock by defendant’s negligence, where it appears from plaintiff’s evidence that a written contract had been entered into for the carriage of the stock, it is incumbent upon plaintiff to introduce the contract in evidence.</p> <p>3. Cabbiebs, § 248*—when duty to introduce whole of written contract not relieved. In an action by a shipper against a carrier of live stock to recover for injuries to stock, where it appears from plaintiff’s evidence that he entered into a written contract with defendant, and plaintiff offers to introduce only a part thereof not showing a contract, plaintiff’s contention that he is relieved from the duty of introducing other parts of the contract because he had not read and did not know of nor assent to the conditions contained in such parts, cannot be sustained, but the whole contract must be introduced, and if defendant introduces evidence showing that any of its provisions preclude recovery, plaintiff must introduce evidence showing the inapplicability of such provisions.</p>

<p>Abstract of the Decision</p> <p>1. False imprisonment, § 2*-when physical and forcible detention not essential. In an action of trespass on the case to recover damages for the alleged wrongful detention of plaintiff, amounting to false imprisonment, in a hospital conducted by defendant company, it is not essential to a recovery that plaintiff should have been physically and forcibly detained by defendant, but conduct of defendant of such character as to make plaintiff, in her then condition, believe that if she attempted to leave the hospital she would be forcibly detained, constituted a wrongful detention against her will.</p> <p>2. False imprisonment, § 29*—when question of wrongful detention one of fact. In an action of trespass on the case to recover damages for the alleged wrongful detention of plaintiff, amounting to false imprisonment, in a hospital conducted by defendant, evidence examined and held, to present a question of fact for the jury as to whether plaintiff had been wrongfully detained against her will.</p> <p>3. False imprisonment, § 28*—when evidence sufficient to support verdict. In an action of trespass on the case to recover damages for the alleged wrongful detention of plaintiff, amounting to false imprisonment, in a hospital conducted by defendant company, evidence examined and held sufficient to support a verdict for plaintiff.</p> <p>4. False imprisonment, § 30*—when instructions properly given. In an action of trespass on the case to recover damages for wrongful detention, amounting to false imprisonment, instructions examined and held properly given.</p> <p>5. Appeal and error, § 1561*—when refusal to give instruction harmless. Refusal to give an instruction requested by defendant is harmless error where as much of the instruction as was applicable to the facts had been covered by other instructions given at defendant’s request.</p> <p>6. Evidence, § 74*—when conversations with third persons admissible. Evidence of conversations of plaintiff with others held outside of the presence of representatives of the corporation defendant are admissible when part of the res gestrn.</p> <p>7. Appeal and error, § 1691*—when error in examining witness waived. In an action against a corporation defendant, any error of counsel for plaintiff in asking a question of a witness, who was the superintendent of defendant and in actual control of its affairs, is waived where the witness insisted upon answering after objection thereto was sustained and such action of the witness was concurred in by counsel for defendant.</p> <p>8. False imprisonment, § 34*—what damages recoverable. In an action of trespass on the case to recover damages for wrongful detention, amounting tq false imprisonment, punitive as well as actual damages are recoverable.</p> <p>9. False imprisonment, § 29*—when amount of xecovery a question for jury. In an action of trespass on the case to recover for wrongful detention, amounting to false imprisonment, the question of damages is for the jury.</p> <p>10. False imprisonment, § 37*—when damages not excessive. In an action of trespass on the case to recover for wrongful detention, amounting to false imprisonment, verdict for $775 held not excessive.</p>

<p>Abstract of the Decision.</p> <p>1. Mechanics’ liens, § 97*—when statement of claim sufficient to warrant recovery against owners and contractor or owners alone. In a proceeding under the Mechanics’ Liens Act (J. & A. f 7139 et seq.) against the owners and contractor, a statement of claim that plaintiff’s claim “is for labor and material furnished for carpenter repairs * * * under orders from defendant, * * * the contractor, agent and superintendent of ’ the repairs to said building for the owners thereof, viz.: the defendants * * *; that the plaintiff caused to be served the notices prescribed by the statute in relation to mechanics’ liens upon said defendants * * *,” is sufficient to support a recovery against all the defendants, if the evidence showed that the contractor defendant ordered, as a contractor, the labor and materials sued for, or against the owners alone, if the evidence showed that the labor and materials were ordered by the contractor defendant as agent or representative of the owners.</p> <p>2. Mechanics’ liens,—when issue of fact raised by pleadings. In a proceeding under the Mechanics’ Liens Act (J. & A. 1f 7139 et seq.) against a defendant alleged to have been the contractor and defendants alleged to be owners, the former, by denying that he entered into a contract with plaintiff and that he had a contract with the owners to furnish such labor and materials, raises an issue of fact, the determination of which hears upon the question whether plaintiff has the right to recover against all of the defendants or against the owner defendants alone.</p> <p>3. Appeal and error, § 1300*—when submission of evidence on issue presumed. In a proceeding under the Mechanics’ Liens Act (J. & A. H 7139 et seq.) against a defendant alleged to have been the contractor and against defendants alleged to have been the owners, where the former raises an issue of fact by denying that he entered into a contract with plaintiff for the labor and materials and that he had a contract with the owners of the premises to furnish said labor and materials, it will be presumed that evidence was submitted to determine such issue.</p> <p>4. Appeal and error, § 1303*—when evidence not preserved presumed sufficient. On a writ of error to the Municipal Court of Chicago, where the evidence upon which the trial court based its judgment is not preserved by bill of exceptions, statement of facts or stenographic report, it will be presumed that evidence offered was sufficient to sustain the court’s findings on the issues and its judgment thereon.</p> <p>5. Appeal and error, § 1301*—when correct application of law to facts presumed. On a writ of error it is presumed, in the absence of anything in the record appearing affirmatively to the contrary, that the court correctly applied the law to the facts offered in evidence.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Edward T. Wade, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Henry C. Beituer, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Jacob H. Hopkins, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Harry M: Fisheb, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.</p>

<p>Abstract of the Decision.</p> <p>1. Negligence, § 198*—when contributory negligence question for jury. The rule is that when, the inference of contributory negligence necessarily results from the evidence it becomes a question of law for the court, but where the evidence is conflicting it is a question of fact to be determined by the jury.</p> <p>2. Negligence, § 191*—when negligence of driver of team question for'jury. Where there was evidence that defendant’s team was driven on the wrong side of the street at a fast trot and was not under proper control, at and prior to the time of the injury caused by such team, such evidence tended to prove negligence and the case was properly submitted to the jury.</p> <p>3. Evidence, § 444*—when opinion evidence of physician as to nature of injuries admissible. Where a doctor, testifying in a personal injury suit for the plaintiff made a digital examination of the plaintiff on the day of the trial, first saw plaintiff on such day, and found Injuries on plaintiff’s jaw bone and clavicle, such examination was objective and not subjective and the doctor’s opinion thereon was admissible.</p> <p>4. Witnesses, § 224*—when defendant may not be cross-examined as to number of dependent children. Trial court may properly refuse to permit defendant in action on account of personal injuries to cross-examine plaintiff with regard to the ages of children for the purpose of showing that there were no children dependent on plaintiff for support.</p> <p>5. Negligence, § 228*—when instruction not objectionable as limiting exercise of ordinary care to exact time of collision. An instruction in an action for personal injuries is not objectionable as limiting the exercise of ordinary care on the part of the plaintiff to the exact time that the collision occurred, because it tells the jury that if they believe from the evidence that the plaintiff was injured afiti sustained damages as alleged in the declaration or some count thereof, “while in the exercise of ordinary care,” where in a prior paragraph of the same instruction “ordinary care” is defined as that degree of care which a reasonably prudent or cautious person before and at the time in question would take to avoid the injury under like circumstances.</p> <p>6. Negligence, § 228*—when instruction not objectionable as limiting exercise of ordinary care to time of accident. An objection to an instruction which reads “while in the use of ordinary care,” on -the ground that it limits the use of ordinary care to the exact time of the injury, is untenable.</p> <p>7. Instructions, § 250*—when giving of instruction not reversible error. Although it is improper to give an instruction which is not applicable to the facts of the case, yet the giving of such instruction will not constitute reversible error, where the reviewing court can see from an examination of the entire record that it did not mislead the jury.</p> <p>8. Instructions, § 88*—when instruction on preponderance of evidence misleading. An instruction enumerating certain things proper to be considered by the jury in determining the matter of the preponderance of the evidence, hut which does not leave the jury free to consider all the evidence introduced and all the facts and circumstances in evidence, in determining where the preponderance or greater weight of the evidence lies, is misleading and is properly refused.</p> <p>9. Damages, § 110*—when verdict for personal injuries not excessive. A verdict for $2,000 for personal injuries is not excessive where plaintiff sustained a fracture of the left lower jaw, a fracture of the collar bone, several bruises on different parts of the body, was about ten days in the hospital and under treatment for two or three months and neither clavicle nor collar bone had united four years after the accident, his face was disfigured, and there was evidence that the condition of jawbone and clavicle was permanent.</p> <p>10. Appeal and errob, § 1413*—when verdict not disturbed. A verdict for damages will be sustained on .appeal where two juries have rendered verdicts for the same sum, and the verdicts have been approved by the trial judges.</p>

<p>1. Cotjbts, § 105*—when Probate Court equitable jurisdiction to reinstate and allow claim. Probate Court has equitable jurisdiction to enter order on oral motion reinstating and allowing a claim which was dismissed, and a formal bill in equity is not necessary for such purpose.</p> <p>2. Exeotjtobs and administbatobs, § 248*—what constitutes sufficient exhibition of claim to prevent bar of statute of limitations. Where claim in Probate Court is dismissed for want of prosecution, and after more than two years from the issuance of letters of administration, and a duplicate of such claim, the original having been lost, is filed by permission of the court, and although the administratrix was not served by summons but was otherwise notified a¿id appeared in court, there was a sufficient exhibition of the claim to the court under Rev. St., ch. 3, sec. 70 (J. & A. H 119), and it was not barred by the two years’ limitation prescribed in such statute.</p> <p>3. Appeal and ebbob, § 17'25*—when previous decision law of case. Previous holding of Appellate Court in same' subject-matter is law of the case on subsequent appeal.</p> <p>4. Appeal and ebbob, § 1802*—when case reversed without re-mantling. Judgment will be entered in Appellate Court on reversed case where all facts are before the court, a jury waived, and no reason exists for remanding the cause.</p>

<p>1. Municipal corporations, § 1098*—when evidence sufficient to establish prima facie case of negligence in maintenance of sewer conduit. In an action by a pedestrian against a city for damages for personal injuries sustained as a result of an explosion of sewer gas in a sewer conduit which also contained an electric system, as he stepped on the cover of a manhole while crossing the street, evidence held sufficient to establish a prima facie case of negligence.</p> <p>2. Appeal and error, § 1466*—when admission of evidence harmless error. In an action by a pedestrian against a city for damages for personal injuries sustained as a result of an explosion of sewer gas in a sewer conduit, which also contained electric wires, when plaintiff stepped on the cover of the manhole, held that the admission of evidence, in behalf of plaintiff, as to facts and circumstances which might or could have given rise to the accident was not prejudicial where it was merely cumulative, and the defendant had not offered any evidence tending to explain the accident or the circumstances in which it occurred.</p> <p>3. Appeal and error, § 717*—when contention on matter not in record will not be considered. In the absence of evidence in the record tending to show a state of facts, a contention based on such state of facts will not be considered by the Appellate Court.</p>

<p>1. Sheriffs and constables, § 78*—when replication to plea of authority sufficient. In action in trespass where defendant pleaded that he had a writ of fieri facias, that the outer door of plaintiff’s house was open at the time he entered, to which plaintiff replied, admitting defendant had the writ but that he nevertheless committed the trespass as alleged in the declaration held, that it was unnecessary for plaintiff to specifically charge in the replication that defendant broke the outer doors, but that by replying as to the abuse to defendant’s plea of authority she stated matter in confession and avoidance.</p> <p>2. Pleading, § 183*—when defendant may demur specially to replication. In action in trespass where a replication de injuria is insufficient, defendant may demur specially.</p> <p>3. Pleading, § 466*—when defect in replication aided by verdict. A defect in a replication de injuria in an action of trespass is aided by verdict.</p> <p>4. Sheriffs and constables, § 80*—when error in admission of evidence not prejudicial. Any error of the trial court in an action, in trespass, wherein it was alleged that a constable broke the outer doors of a residence to serve a writ, in allowing plaintiff to testify that she had no recollection of any service of a summons on her in the action wherein the writ was served, was not prejudicial, where the trial court gave instructions which were predicated upon the assumption that defendant had a valid writ of execution.</p> <p>5. Trespass, § 11*—what constitutes a dwelling house. In an action in trespass, a boarding house is a dwelling house where plaintiff resides therein.</p> <p>6. Sheriffs and constables, § 83*—when instruction as to right of officer breaking in door of dwelling to serve writ sufficient. In an action in trespass against a constable serving a writ and breaking into a dwelling house, inner doors in a vestibule leading into a house are outer doors of the house even though there may be outer doors to the vestibule, and an instruction with reference to breaking in the outer door need not designate which of such above doors were inner or outer.</p> <p>7. Sheriffs and constables, § 83*—when instruction as to measure of damages for injury to business because of unlawful entry by constable sufficient. Where in an action in trespass for unlawful entry of constable serving a writ, it appears that the officer unlawfully entered plaintiff’s house, it is proper to instruct the jury that if they find for’plaintiff and if they find that plaintiff had an established business which was injured or destroyed as a proximate result of the acts of defendant in taking plaintiff’s goods they may assess damages proximately accruing from such loss of business.</p> <p>8. ' Sheriffs and constables, § 83*—when instruction in action against constable for breaking into a house to serve a writ not prejudicial. Where in action in trespass against a constable for breaking into a house to serve a writ, a portion of an instruction complained of is predicated upon the assumption that defendant made a peaceable entry into plaintiff’s house, whereas the jury found in one of their special findings that he broke the outer door thereof, defendant could not have been prejudiced by such instruction.</p> <p>9. Sheriffs and constables, § 80*—when evidence sufficient to sustain verdict. In an action against a constable for damages for breaking into a house to serve a writ on plaintiff, evidence held sufficient to sustain a verdict for plaintiff.</p>

<p>Architects and engineers,—when corporation not guilty of practicing architecture without a license. Under Hurd’s Rev. St. Ch. 10a, sec. 5 (J. & A. If 479), relative to the licensing of architects, a corporation does not incur the penalty provided in section 8 of such chapter (J. & A. f 482) for practicing architecture without a license, when it makes a contract for the doing of architectural work and the work is actually performed by and under the direction of a duly licensed architect, who is an employee of the corporation.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Hugo Pam, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Clinton F. Irwin, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.</p>

<p>Appeal from the County Court of Cook county; the Hon. Frank G. Plain, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.</p>

<p>Abstract of the Decision.</p> <p>1. Appeal and error, § 1802*—when Appellate Court will reverse ancl remand case because of subsequent decision of Supreme Court on similar point. Where Supreme Court holds point of law contrary to holding of Appellate Court in different case but in same term of court, the Appellate Court will reverse and remand such case which it had previously affirmed.</p> <p>2. Municipal Court of Chicago, § 13*—when statement of claim in action against city for personal injuries sufficient. In fourth-class cases in the Municipal Court of Chicago, a statement of claim in an action against a city for personal injuries need not allege the giving of statutory notice of injuries to the city.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Charles N. Goodnow, Judge, presiding. Heard in this court at the October term, 1915.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Theodore Brentano, Judge, presiding. Heard in this court at the October term, 1915.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>Abstract of the Decision.</p> <p>1. Husband and wiee, § 217*—when wife not justified in refusing to live with husband so as to be entitled to separate maintenance. Refusal of husband to convey some of his property to his wife or to cancel a certain lease to his son-in-law does not give her legal grounds for refusing to live with him, under Hurd’s Rev. St., ch. 68, sec. 22 (J. & A. H 6159), so as to entitle her to separate maintenance.</p> <p>2. Husband and wife, § 222*—when husband not guilty of desertion of wife so as to entitle her to separate maintenance. Desertion of a wife by her husband, so as to entitle her to separate maintenance under Hurd’s Rev. St. eh. 68, sec. 22 (J. & A. % 6159), does not take place when husband, under the advice of a physician, leaves her for a period of rest, and he is impelled thereto by the conduct of the wife.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding. Heard in this court at the October term, 1915.</p>

<p>1. Municipal corporations, § 45*—when city council power to examine records of board of education as to expenditures. Under Hurd’s Rev. St., ch. 122 (J. & A. 10022 et seq.) and the special charter of 1863 of the City of Chicago, the duty of control of expenditures of the board of education by the city council necessarily involves knowledge of receipts and expenditures and the right to obtain this knowledge through examination of records of the board of education.</p> <p>2. Municipal corporations, § 45*—when city council entitled to access to records of board, of education as to expenditures. The duty of the Chicago Board of Education to communicate to the city council such information as may he required does not deprive such council of the right of access to the original sources of information from records of such board.</p> <p>3. Municipal corporations, § 45*—when city council may examine records af board of education as to expenditures. While Act of 1909, Hurd’s Rev. St. ch. 122 (J. & A. If 10022 et seq.), to establish and maintain a system of free schools, gives the Board of Education of the City of Chicago exclusive right of management of-many details of the schools, it has not taken from the city council the right, under the special charter conferred in 1863, to examine the original records of receipts and expenditures of such hoard.</p> <p>4. Municipal corporations, § 45*—when city council may examine records of board of education as to expenditures. The animus or motive of the Chicago City Council in seeking to make an examination of the records of receipts and expenditures of the hoard of education of such city cannot affect its right to so do.</p>

<p>Appeal from the County Court of Cook county; the Hon. David T. Smiley, Judge, presiding. Heard in this court at the October term, 1915.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Samuel C. Stough, Judge, presiding. Heard in this court at the October term, 1915.</p>

<p>1. Contracts, § 139*—when agreement between park commissioners and abutting property owners for maintenance and repair of street invalid as against public policy. An agreement between a board of park commissioners in the City of Chicago and owners of property abutting on a street in such city, providing for the payment of a yearly amount per front foot by such owners to the commissioners, held contrary to public policy, where such commissioners had previously accepted an ordinance making it their duty to maintain and repair such street, on the grounds that park commissioners have no authority to compel abutting owners to pay for the maintenance or repair of a street after the making of the initial improvement' as such expenses are to be met by general taxation.</p> <p>2. Municipal corporations, § 159*—what does not constitute a contract for improvement of streets for which municipality may accept aid from individuals. A contract for payment of a certain annual sum by abutting owners to park commissioners for the maintenance of a boulevard does not come within the doctrine that a municipality may accept aid from individuals in making an improvement to a street, so as to constitute such contract valid and enforceable.</p> <p>3. Contracts, § 85*—when contract between park commissioners a¡nd abutting property owners for maintenance of street without-consideration. An agreement between the Board of Park Commissioners of the City of Chicago and the property owners abutting on a street, for the payment of a yearly amount per front foot by such owners for maintenance purposes, is invalid as being without consideration.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Jacob H. Hopkins, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.</p>

<p>Error to the Municipal Court of Chicago; the Hon. John A. Mahoney, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.</p>

<p>Attorney and client, § 61*—when attorney implied authority to indorse check received in payment of collection to bank. In an action of trover for the conversion of a check, of which plaintiff, a foreign corporation, payee, and defendant, a local bank, indorsee and which had been converted after it had been indorsed to defendant by a local attorney, who had been instructed by plaintiff’s foreign attorney to collect a local account from plaintiff’s debtor, where such account was paid in part by such check drawn to plaintiff’s order and where plaintiff’s foreign attorney instructed the local attorney to remit amount collected less fees and enough to start suit on the balance, and such local attorney indorsed the check with plaintiff’s name and his own to defendant bank which credited his account therewith, ■ held, that the local attorney had implied authority to indorse the check to the bank and that there could consequently be no recovery against the latter.</p>

<p>Abstract of the Decision.</p> <p>Assumpsit, § 89*—when evidence insufficient to establish joint liability of principal and agent. In an action against a brewing company and its manager for money had and received by defendants without consideration, weight of evidence held to show that the money was paid to the brewing comjjany’s manager in accordance with a personal contract and to not establish joint liability of the brewing company and the manager.</p>

<p>Abstract of the Decision.</p> <p>Assignments, § 31*—when assignee of part of partnership debt may sue alone as plaintiff in garnishment action. Where a commission for the sale of real estate is due a partnership consisting of two persons, and one partner assign's his interest to the other the latter has the right to sue thereon in his own name in a garnishment action under the Practice Act, sec. 18 (J. & A. U 8555), without joining his partner.</p>

<p>Error to the Municipal Court of Chicago; the Hon. John J. Rooney, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.</p>

<p>Abstract of the Decision.</p> <p>1. Abatement and revival, § 48*—when motion to dismiss because of pendency of prior action properly denied. A motion in a suit of forcible detainer to dismiss same because of the pendency of a prior suit is properly denied, where the plaintiff after the institution of the second suit but before judgment took a nonsuit in the former suit.</p> <p>2. Forcible entry and detainer, § 22*'—what constitutes sufficient possession. Where defendant in action of forcible detainer contended that he had not been given complete possession of the premises leased because a room in the basement was withheld from him and contained goods of the plaintiff which plaintiff on request bad failed to remove, held in view of delivery of key to such room by plaintiff to defendant and the refusal of defendant afterwards to permit plaintiff’s agent to remove such goods, that the defense of want of possession was without foundation.</p> <p>3. Landlord and tenant, § 55*—when oral agreement for nonpayment of rent unenforceable. In an action of forcible detainer of leased premises where defendant contended that plaintiff verbally agreed with him that he could stay and pay no more rent until plaintiff gave him possession of the basement, a room in which defendant contended, contrary to the evidence, was withheld from him, such agreement was nudum, pactum, without consideration, and so long as the contract contained in the lease under seal remained executory, the plaintiff had the right to repudiate the parol agreement and claim the full amount of rent.</p> <p>4. Trial, § 191*—when verdict properly directed. There being no evidence that warrants a finding of the issues of fact for the defendant, no error in the rulings of the court and no complaint concerning instructions, a verdict for plaintiff is properly directed.</p> <p>5. Forcible entry and detainer, § 31*—when notice to quit not necessary as prerequisite to maintenance of action. In an action of forcible detainer where the terms of the lease expressly waive notice and demand, a contention that the lease sued on was terminated by bringing a prior action of forcible detainer which was dismissed, and that the action at bar would not lie until after the statutory notice to quit, is not tenable, as no notice or demand is necessary.</p> <p>6. New trial, § 81*—when oral motion for new trial may be overruled without allowing additional time for presentation. Overruling an oral motion for new trial at the close of the case without allowing additional time for its presentation deprived defendant of no right and was not an abuse of discretion.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. John Stelk, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.</p>

<p>1. Wills, § 229*—when revoked provisions of will considered for purpose of ascertaining intention of testator. Provisions of will although revoked by item in codicil will be regarded for the purpose of determining the intention of the testator.</p> <p>2. Wills, § 398*—what constitutes an executory devise or bequest. An executory devise or bequest of lands or personal property is such a disposition of them by will that thereby no estate vests at the death of the devisor, but only on some future contingency.</p> <p>3. Wills, § 398*—when will does not provide for executory devise or bequest. No executory devise or bequest is intended by the testator where provisions for his children made by the testatpr in the will are limited to take effect before his death and are evidently intended as provisions against the intestacy, with reference to property devised in such will, of his children who might die before he did.</p> <p>4. Wills, § 230*—when words in different parts of will harmoniously construed. Courts will not construe the same words used in different parts of the will as having different meanings, if it is possible to do so, but the intention to use the same words in different senses must be clear and beyond question.</p> <p>5. Wills, § 229*—when words in codicil construed in harmony with words in will. Where it appears to be the intention of a testator, as between heirs by blood and the estate of a deceased heir without issue, to create executory devises and bequests by provisions in the codicil of his will, which provisions are disputed, and the provisions in such codicil are similar to provisions in the will which show intention to vest such heirs with the fee, and such provisions in the codicil were evidently intended to provide against intestacy during the existence of the trust created by his will and not as a limitation on the fee, the court will construe such provisions to intend his heirs to have an absolute fee in the property devised, on the principle that the same words in different parts of the same will, if possible, ought to be construed to have the same meaning.</p> <p>6. Wills, § 339*—when .construed to give fee simple to heir. Instructions in will permitting trustees of the property devised to terminate trust as to any of testator’s children and to pay over such child’s share to it, give such child the power to alienate its property after the termination of the trust, and evidence an intention to give an absolute fee to such children.</p> <p>7. Wills, § 226*—when intention of testator will he given effect. Courts will give effect to the intention of the testator unless it violates some established rule of law.</p> <p>8. Wills, § 234*—when should he construed to avoid intestacy. A will should be construed so as to avoid intestacy, if possible, as to any of testator’s property.</p> <p>9. Wills, § 229*—when codicil and will should he harmoniously const'rued. The provisions of a codicil and the will should be construed so as to harmonize them with each other as far as possible.</p> <p>10. Wills, § 283*—when not construed as excluding son-in-lano from inheritance. A clause in a will providing that no daughter of testator with her husband shall so occupy or control the use of the homestead as to exclude therefrom or prejudice any unmarried child of such testator, does not show intention to exclude his son-in-law from inheritance of the property.</p> <p>11. Wills, § 283*—when provision excluding son4n-law from inheritance of property except with consent of trustees limited to period of trust. A clause in a will providing that no part of fund in trust for testator’s daughters “shall pass to or be paid to her husband, or in any way be controlled by such husband, except by consent of said trustees,” and provision in codicil that interest held in trust for each of his daughters is given and intended “to he her sole and separate estate, and shall not pass to * * * her husband, except by the consent of her trustees,” held in connection with other provisions of the will, to limit the prohibition only to the time of continuance of the trust as against the surviving husband of one of such daughters.</p> <p>12. Wills, § 283*—when provision of will not construed as excluding husband of heir from participating in heir’s legacy only during period of trust. Where a provision in the first codicil of a will provided that any of testator’s children might, by will, give or bequeath his or her share of testator’s estate to any other child or lineal descendant of testator’s, or of testator’s deceased wife, giving it only to persons of testator’s or testators’ wife’s blood and the last clause in second codicil provided that in case any of the cestuis que trust should die during the existence of the trust in said will and the codicil specified and should not have disposed of his or her trust estate by will, and said trust interest should pass to his or her heirs by inheritance as provided, but it should remain in the hands of said trustees, but thereafter for the benefit of the inheritor, held, that the limitations to convey by will only to persons of the blood ceased with the termination of the trust, and were evidently provisions against intestacy during the existence of the trust and were not intended to exclude husband of one of testator’s daughters from her legacy.</p> <p>13. Wills, § 331*—what constitutes violation of rule against perpetuities. A provision in codicil that if any of testator’s children “shall die leaving issue, and such issue shall die childless, then in that case all property derived from me shall go to my other children and their heirs, such heirs to have only their ancestor’s part in any case,” if construed to intend the creation of executory devises or bequests so that property should revert to surviving children of the testator, such construction would be contrary to the rule against perpetuities.</p> <p>14. Wills, § 235*—when construction adopted which will give effect to meaning of words. If one construction of a will renders a portion of the language used meaning less and another gives effect to all the words used, the latter must be adopted.</p> <p>15. Wills, § 224*—when construction of will and codicil as to disposition of personalty governed by laws of foreign State. Where a testator was domiciled and died in a foreign State, and the will and codicils were drawn in such State, the construction and effect thereof, as affecting personal property, must be governed by the law of that State.</p> <p>16. Wills, § 339*—when will construed as creating an estate in fee. Where an item of a codicil to a will made in the State of Indiana and relating to personal property authorizes trustees to use as much of .the trust property as might become necessary, for the benefit of testator’s children, the rule in Indiana, the law of which governs construction of the will and its codicils, is that an absolute power of sale in the first taker renders a subsequent limitation over repugnant and void, and such will and codicils will not be construed to give the first takers an estate for life only so as to bring it within the exception to the foregoing rule whereby, if a testator gives an estate for life only, by certain and express terms, and annexes to it the power of disposition, the devisee in that special case would not take an estate in fee.</p> <p>17. Wills, § 336*—when estate in fee created by disposing words. Testator having used 'the disposing words, “to her or him, or her or his heirs forever,” clearly to confer complete and absolute title, such interest or estate cannot be held to be subject to limitations over, where the provisions alleged to create such limitations are not so clear and decisive as the words expressing the dominant purpose to give absolute title.</p> <p>18. Partition, § 2*-—when representative of heir participating in partition settlement bound by such settlement. The estate of a deceased legatee should not be held, in an action to construe a will, to revert to the surviving children of testator or their personal representatives, where all of testator’s children, except one whose property was retained by trustees under the will and the trustees of testator’s estate, filed a petition in the courts of the State in which the personalty was located in which they represented that they had agreed upon a division of such property, and that such division as therein set forth should be taken and held as a full settlement, partition and adjustment of all the property mentioned, and where each child, by order of such court, received an equal amount of cash and securities as a full settlement and adjustment of such child’s right and interest in the trust estate, and no fraud is claimed, and the surviving children of the testator were parties to said proceeding by apt designation for all the purposes essential to determine their respective rights and interests, and only one of the parties to the settlement is now living, and more than forty years have elapsed since it was made, and it is denied by defendant that the property coming to him as personal representative of such deceased legatee is the property derived by her from such settlement.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>1. Chattel mortgages, § 48*—when invalid for defective execution and acknowledgment as against third parties. A mortgage which is executed and acknowledged in 1914 by an attorney in fact acting for such mortgagors under a power of attorney, although it may have been valid as between mortgagor and mortgagee, is invalid as against subsequent lienors not parties or privies thereto, inasmuch as it was not acknowledged and executed by the mortgagors in accordance with section 2 of the Mortgage Act, Rev. St., ch. 95 (J. & A. i 7577), as it existed when the mortgage was executed and acknowledged.</p> <p>2. Chattel mortgages, § 1*—when statute in relation to strictly construed. Section 2 of the Mortgage Act, Rev. St., ch. 95, as it existed in 1914 (J. & A. 1f 7577), being in derogation of the common law, must be strictly construed, and chattel mortgages not executed, acknowledged and recorded as provided therein are invalid as to those not parties or privies thereto.</p> <p>3. Replevin, § 123*—what does not constitute prima facie case in action against person claiming innkeeper's lien. Where mortgagee of a piano in its replevin suit against one claiming an innkeeper’s lien on such piano did not confine its evidence merely to the execution of the mortgage and a breach of its covenants, but by its own evidence showed defendant’s possession was not mere naked possession of a disinterested third person, but the possession by virtue of an innkeeper’s lien, held that such proof did not make a prima facie case for plaintiff in the absence of proof of facts negative to the right to an innkeeper’s lien.</p> <p>4. Innkeepers—what constitutes effects and valuables which are subject to lien. Under the Innkeeper’s Act, Rev. St. ch. 71, sec. 1, 2 (J. & A. KIT 6193, 6194), providing for a lien upon all “baggage,” “other valuables” and “effects” brought into a hotel by guests, a player piano brought into a hotel by a guest must be considered as part and parcel of his effects or valuables.</p> <p>5. Appeal and error, § 1786*—when case not reversed upon failure to raise questions in lower court. Courts of review are opposed to the reversal of cases upon questions which should have been raised in the court below and which are raised for the first time on appeal or error.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Frank H. Graham, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.</p>

<p>1. Divorce, § 137*—when wife entitled to attorney’s fees for past services in dismissed case. Where during the pending of divorce proceedings, afterwards dismissed, complainant is allowed solicitor’s fees for past services, she is entitled to retain same in spite of the' dismissal, it appearing that the payment thereof is necessary in order to enable her to further carry on an action or maintain her defense thereto.</p> <p>2. Appeal and error, § 1270*—when presumed that chancellor found that allowance of attorney’s fees to complainant in divorce action was necessary. Where nothing but the order in divorce proceedings allowing solicitor’s fees is before the court, in the absence of any evidence to the contrary, the court must presume that the chancellor believed the wife to have a probable cause of action and that the payment of such fees, whether for past services or for future services, was necessary to enable the wife to maintain her action.</p> <p>3. Divobce, § 135*-—when wife entitled to solicitor’s fees. The allowance of solicitor’s fees under the Divorce Act, Hurd’s Rev. St. ch. 40, sec. 15 (J. & A. 4230), is not contingent upon a successful termination of the suit, but if it appears at the time of making the request that the wife has a probable cause of action, she is entitled thereto.</p> <p>4. Divobce, § 149*—when order for allowance of attorney’s fees to wife as complainant presumed to be for benefit of defendant. An allowance of solicitor’s fees in’an order pending divorce proceedings whereby defendant is permitted to pay $100 within thirty days and the remaining $100 in another thirty days must be presumed to have been for the benefit of defendant himself.</p> <p>5. Divobce, § 139*—when defendant not relieved from payment of attorney’s fees. The mere fact that the terms for payment of attorney’s fees to the wife as complainant are made convenient to the defendant does not relieve defendant of paying them when the suit afterwards terminates in his favor and is dismissed, where the court retains power to compel such payment notwithstanding the dismissal of the bill for want of equity.</p> <p>6. Contempt, § 70*—when order of commitment not defective as denying defendant right to purge himself by payment of money. An order that defendant in contempt proceedings brought on account of his nonpayment of solicitor’s fees allowed in divorce proceedings against him, shall be entitled to. his relief from imprisonment upon payment of $100 at any time after commitment, but that in default thereof he cannot be held in jail for more than thirty days, cannot be considered fatally defective on the contention that it omits the right of defendant to purge himself by paying the money.</p>

<p>Abstract of the Decision.</p> <p>1. Masteb and seevant, § 687*-—when evidence sufficient to sustain finding that master negligent in failing to guard elevator platform. In an action for personal injuries where the first count in a declaration charged negligence in the failure to construct walls or other protection around an elevator in the canning department of defendant’s -packing house, and there was proof that such elevator was open at both ends and used by foreigners, acting as common laborers in elevating trucks, which, when placed on the platform of such elevator left very narrow margin thereon, and it appeared that the truck of plaintiff at the time of the accident was loaded with piles of boxes so high that the trucker could not see over the top, and the boxes, which projected slightly over the platform, struck a joist supporting an upper floor, fell off, and knocked plaintiff off the elevator, evidence held sufficient to sustain a.finding that the failure to inclose the platform of the elevator constituted negligence.</p> <p>2. Masteb and seevant, § 156*-—what constitutes negligence in failing to guard platform of elevator. What is usually done is not the standard for determining the question of negligence or ordinary care with reference to the failure of an employer to protect the platform of an elevator used by its servants with an inclosure.</p> <p>3. Appeal and ebbob, § 1520*—when refusal to give peremptory instructions in reference to some of counts in declaration, not reversible error. If there is evidence sufficient to sustain the action laid in any one of three counts in a declaration, the refusal to give peremptory instructions with reference to the other two, even if erroneous, is not reversible error.</p> <p>4. Masteb and seevant, § 562*—when proof of single count sufficient. In an action for personal injuries sustained by a trucker while engaged in taking a truck of boxes to an upper floor of a building in an unguarded elevator operated by another servant, as a result of projecting boxes striking against a beam in the elevator shaft as the car ascended, falling off, and knocking plaintiff to the bottom of the shaft, it is immaterial that the court failed to give a formal instruction to find the defendant not guilty on a certain count, on the ground that there was no evidence to show that the elevator operator was negligent as alleged in such count, where there is evidence to sustain other counts in the declaration.</p> <p>5. Appeal and ebbob, § 1628*—when error in refusing to direct verdict as to particular count cured. In an action by a servant for personal injuries sustained while in performance of his duties in taking a truck of boxes to an upper floor of a building in an unguarded elevator operated by another servant, as a result of projecting boxes catching against a beam in the shaft, as the car ascended, falling off and knocking the plaintiff to the bottom of the shaft, it is immaterial that the court failed to give a peremptory instruction to find defendant not guilty on a particular count, alleging that the injury was due to the negligence of the operator of the elevator because they were fellow-servants, where the court specifically instructed the jury that the plaintiff and elevator operator were fellow-servants, and that no recovery could be had on account of the negligence, if any, of the latter.</p> <p>-6. Master and servant, § 773*—when question whether elevator unsafe place to work, for jury. In an action by a servant for personal injuries sustained, while in performance of his duties in taking a truck of boxes to an upper floor of a building in an unguarded elevator operated by another servant, as a result of projecting boxes catching against a beam in- the shaft, falling off, and knocking plaintiff to the bottom of the shaft, held that there was ample evidence to justify the court in submitting the issue raised by the first additional count of plaintiff’s declaration to the jury, such count having reference to facts which rendered unsafe the place where plaintiff worked and defendant’s knowledge thereof, and the question whether such facts together with all the other facts in evidence rendered the place unsafe, and defendant’s knowledge thereof, were properly submitted to the jury.</p> <p>7. Master and servant, § 312*—when servant assumes risks of employment. The servant assumes not only the ordinary risks incident to his employment, but also all dangers which are obvious and apparent, and if he voluntarily enters into or continues in the service, knowing, or having the means of knowing, its dangers, he is deemed to have assumed the risks and to have waived all claims against the master for damages in case of personal injury.</p> <p>8. Master and servant, § 739*—when question of assumption of risk for jury. The question whether the servant has assumed the danger which he encounters ordinarily is one of fact, but the question will become one of law when but one conclusion can be drawn from the evidence by all reasonable minds.</p> <p>9. Master and servant, § 751*—when 'question of contributory negligence of servant for jury. While the question whether a servant has been guilty of contributory negligence is ordinarily one of fact, it will become one of law when but one conclusion can be drawn from the evidence by all reasonable minds.</p> <p>10. Master and servant, § 698*—-when evidence insufficient to establish assumption of risk attendant on use of defective elevator. In an action for damages for personal injuries sustained by a trucker while engaged in taking a truck of empty boxes to an upper floor of a building in an unguarded elevator operated by another servant, as a result of projecting boxes striking against a beam in the elevator shaft as the car ascended, falling off, and knocking plaintiff to the bottom of the shaft, held that the manifest weight of the evidence does not show that the hazard causing his accident was or should have been known to the plaintiff in view of circumstances that he was a common laborer at the bottom of the industrial scale, and that His regular work was that of trucking full boxes which were only piled two or two and one-half feet high upon his" truck, while there was evidence that plaintiff at the time of the accident trucked a load so high that he could not see over the top of it, and there was a conflict in the evidence as to whether plaintiff had ever trucked a load of empty boxes previously.</p> <p>11. Master and servant, § 699*—when evidence insufficient to establish contributory negligence of servant using elevator. In an action for damages for personal injuries sustained by a trucker while engaged in taking a truck of empty boxes to an upper floor of a building in an unguarded elevator operated by another servant, as a result of projecting boxes striking against a beam in the elevator shaft as the car ascended, falling off, and knocking plaintiff to the bottom of the shaft, evidence held insufficient to establish that plaintiff did not exercise all the care which his circumstances at and before the accident allowed.</p> <p>12. Appear and error, § 1410*—when verdict not disturbed as against weight of evidence. Where questions of fact are passed upon by a jury properly and fully instructed as to the law, and a motion for a new trial is considered and refused by the trial court, the verdict will not be disturbed as against the weight of evidence on appeal, unless it is clearly so on some essential issue involved.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Adelor J. Petit, Judge; presiding. Heard in the Branch Appellate Court at the October term, 1914.</p>

<p>Error to the Municipal Court of Chicago; the Hon. John A. Mahoney, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.</p>

<p>Abstract of the Decision.</p> <p>1. Municipal Court of Chicago, § 13a*—what does not constitute variance between statement of claim and proof. In a fourth-class case in the Municipal Court of Chicago for damages caused to plaintiff’s horse and wagon by defendant’s runaway team, where plaintiff’s statement of claim averred that defendant’s team and wagon were left “unattended, unhitched and unguarded,” and the evidence was contended to be in fatal variance therewith in showing only that the team was left unattended and unhitched, such contention held to be without merit.</p> <p>2. Negligence, § 187*—when evidence sufficient to sustain finding as to negligence in driving team. In an action for damages to plaintiff’s horse and wagon by defendant’s runaway team, evidence held sufficient to sustain a finding as to negligence of the driver of defendant’s team.</p> <p>3. Negligence, § 164a*—when evidence as to gentle disposition of horse inadmissible. Where plaintiff in action for damages caused to his horse and wagon by defendant’s runaway team offered evidence as to the gentle disposition, etc., of his team, such evidence was properly refused, plaintiff not claiming that the horses were other than gentle, but basing his action on the negligence of defendant on the control and management of the team.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. John A. Mahoney, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>Appeal from the Superior Court of Cook county; the Hon. M. L. McKinley, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>1. Dentists, § 2*—when person may not practice dentistry without license. Under Hurd’s Rev. St. ch. 91 (J. & A. If 7433 et seq.), a person may not practice dentistry without a license unless he comes vrithin one of the exceptions made by the statute itself.</p> <p>2. Dentists, § 2*—what constitutes practicing dentistry without a license. Where defendant, in an information charging him with unlawfully practicing dentistry withbut a license, had no such license but taught particular methods of treating dental diseases and demonstrated on patients furnished by his students, and charged such students $175 for instruction and demonstration but did not charge the patients for such work, held, under all the evidence, that he was practicing dentistry without a license within the meaning of Hurd’s Rev. St. ch. 91 (J. & A. K 7433 et seq.).</p>

<p>Abstract of the Decision.</p> <p>1. Parent and child, § 3*—when parent entitled to custody of child. The parent has the right to the custody of his child as against the world unless he has forfeited his right, or the welfare of the child demands that he be deprived of it.</p> <p>2. Parent and child, § 2*—what is controlling element as to custody of child. The controlling element with reference to the custody of a child is the welfare of the child, and this is not to be •determined solely from the financial standing of the parties.</p> <p>3. Marriage, § 2*—what law determines validity of marriage in foreign State. The legality of a marriage taking place in a foreign State, when questioned in Illinois, is to be adjudged by the laws of the foreign State, except where the marriage is in violation of some positive law of this State.</p> <p>4. Marriage, § 2*—where marriage contracted in foreign State recognized. Relator in habeas corpus proceedings for the custody of his daughter who had married his first cousin, the mother of such daughter, in Wisconsin, and returned with her thereafter to his home in Minnesota, contracted a valid and binding marriage even though the laws of Illinois, which had been the home of his wife and whence he had taken her to Wisconsin, prohibit such a marriage.</p> <p>5. Infants, § 4*—when evidence sufficient to sustain award of custody of child to father in habeas corpus proceedings. In a habeas corpus proceeding by a father residing in another State to procure the custody of his child which was left with the maternal grandparents in this State after the death of the mother, evidence held sufficient to sustain an award of the custody of the child to the father.</p>

<p>Error to the Municipal Court of Chicago; the Hon. John C. Wobk, Judge, presiding. Heard in this court at the October term. 1915.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Joseph Z. Uhlir, Judge, presiding. Heard in this court at the October term, 1915.</p>

<p>Abstract of the Decision.</p> <p>1. Judgment, § 82*—when affidavit supporting motion to open judgment hy confession insufficient. A motion to open a judgment entered by confession and to permit the defendant to plead should not be granted unless it satisfactorily appears to the court by affidavit that defendant has a good defense upon the merits, such affidavit to be construed most strongly against such defendant, and it is not sufficient to state facts from which, if proved on a trial, a defense might be inferred.</p> <p>2. Judgment, § 82*—when allegation in affidavit supporting motion to open judgment hy confession on note insufficient. Where in an affidavit supporting a motion to open judgment by confession on a note, to stay execution and permit defendant to plead, defendant sets up that plaintiffs while acting as his agents falsely and fraudulently represented that $2,000 had been paid on a prior lien of $12,000 on real estate whereby he was induced to trade real estate belonging to him for a note secured by such other real estate, held that the value of the real estate not appearing, it made no difference with regard to the value of the note received by plaintiffs as to whether the first incumbrance was $10,000 or $12,000, or as to the amount of interest unpaid, and the affidavit was consequently insufficient.</p> <p>3. Judgment, § 82*—when allegation in affidavit supporting motion to open up judgment hy confession on note insufficient as statement of defense. Where it was alleged, in an affidavit filed in support of defendant’s motion to open up a judgment on a note by confession, that stock traded to defendant by plaintiffs was fraudulently represented as having a market value in excess of $125, whereas, it had no market value, but its value, if it had any, was speculative and uncertain, it. not being alleged that it was worth less than $125, held such allegation was insufficient as a statement of defense.</p> <p>4. Judgment, § 82*—when allegations in affidavit supporting motion to open up judgment hy confession on note insufficient. Where a note is made payable “November 1st after date” and the trust deed securing its payment recites that it is “payable November 1, 1918, after date,” such discrepancy is at most a clerical error and does not impair the value of the note, and allegations that it was fraudulently represented that the note and trust deed were in due form and that defendant is informed and believes that the note and trust deed might not be acceptable as security or collateral, are unavailing in an affidavit supporting a motion to open up a judgment against defendant by confession on such note.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding. Heard in this court at the October term, 1915.</p>

<p>Abstract of the Decision.</p> <p>1. Master and servant, § 50*—when evidence sufficient to sustain finding that servant not wrongfully discharged. In an action against a traveling salesman for the excess of advances over commissions earned, evidence held sufficient to establish that defendant was not wrongfully discharged, and that he quit under an agreement.</p> <p>2. Municipal Court of Chicago, § 13*—when sufficiency of statement of claim admitted. Upon the question of competency of evidence to support the judgment in an action for the repayment of the excess of plaintiffs’ advances over commissions due defendant as a salesman, where plaintiffs’ statement of claim alleges advances to defendant which defendant’s affidavit of merits admit, and further states the amount of orders upon which defendant is entitled to commissions, and where defendant did not avail himself of the provisions of rules of the Chicago Municipal Court whereby he could have questioned the correctness of such statement or be excused for cause from a specific answer, held that the correctness of plaintiffs’ statement of the account was admitted and it was unnecessary to make detailed proof thereof.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Sheridan E. Fry, Judge, presiding. Heard in this court at the March term, 1916.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Arthur J. Gray, Judge, presiding. Heard in this court at the October term, 1915.</p>

<p>Abstract of the Decision.</p> <p>1. Civil seevice, § 25*—when presumed that single member of park civil service board authorised to act as trial board. In mandamus proceedings by a patrolman to secure reinstatement on the roster of patrolmen of a board of park commissioners where the Park Civil Service Act, (Hurd’s Rev. St., ch. 24a, sec. 12, J. & A. H 8260), provides that "charges shall be investigated by * * * the civil service board or by * * * some officer or officers appointed by the hoard,” and where the trial hoard which heard relator,’s case consisted of two men, only one of whom held the hearing and reported findings thereon, and it is not denied that the proceedings were otherwise regular, and where the park civil service board approved of such single member as its trial board and not only approved his report but acted upon its recommendation, it will be assumed that such single member was authorized to act as the trial board under authority of the park civil service board, there being no averment that he was not so acting or authorized to act.</p> <p>2. Civil service, § 25*—when presumed that park civil service board authorized one of its members to act as trial board. Where a park civil service board had the power to change the personnel of its trial board at any time, in the absence of any averment to the contrary, in mandamus by a discharged park patrolman for reinstatement, it will be assumed that it authorized a single member of such trial board to proceed as sole trial officer.</p> <p>3. Civil service—when any illegality in appointment of persons on trial board corrected by action of board. If there is room for any doubt as to the legality of the appointment of the persons constituting a park trial board, the ratification of the action of the board by the park civil service commission in approving and adopting its report and findings is a sufficient corrective.</p> <p>4. Civil service, § 25*—when patrolman petitioning for reinstatement may not raise jurisdictional question of trial board on appeal. A discharged park patrolman, petitioning for mandamus to reinstate himself as such patrolman, who appeared at the trial before a trial board in person and was heard in his own defense, and made no protest or objection to the jurisdiction of the trial board either before that board or to the park civil service commission, cannot raise the jurisdictional question for the first time on appeal.</p>

<p>Abstract of the Decision.</p> <p>1. Criminal law, § 506*—when presumed that evidence sufficient to sustain conviction and judgment. Where only the statutory record in a criminal prosecution is brought before the Appellate Court and all the errors complained of are said to be encompassed within such record, it will be assumed that the evidence was sufficient to sustain the conviction and judgment if the information warrants the conviction and the judgment is a lawful one.</p> <p>2. Prostitution, § 4c*—when question of insufficiency of information may not he raised on appeal. The objections made for the first time on review that charges in the information charging a person with being an inmate of a house of ill fame, on which he is prosecuted, are in the disjunctive and that the venue in caption of such information is no part of the information, held without force, where defendant did not challenge its sufficiency in any way before the trial court or call for the ruling of the court thereon.</p> <p>3. Prostitution, § 3a*—when information charging occupancy of house of ill fame sufficient. An information charging that defendant was “an inmate of a house of ill fame or assignation or prostitution or lewdness,” even though in the disjunctive, charges but one offense in legal effect and intendment.</p> <p>4. Indictment and information, § 13*—venue as part of information. The venue is a part of the information, and the charge that the offense was committed at the “City of Chicago aforesaid,” by construction refers to the venue as laid in the caption of the information.</p> <p>5. Prostitution, § 3a*—when information charging defendant with being an inmate of house of ill fame sufficient. On the contention that an information charging defendant with being an inmate of a house of ill fame does not charge that such act is unlawful, held it is sufficient if the charge is in the language of the statute and the statute made the act charged unlawful.</p> <p>6. Prostitution, § 4*—when evidence presumed to sustain charge in information. Where the evidence in a prosecution for being an inmate of a house of ill fame is not in the record before the court of review, all intendments must be indulged necessary to sustain the charge in the information.</p> <p>7. Appeal and error, § 198*—lack of jurisdiction of Appellate Court in constitutional matters. The Appellate Court has no jurisdiction to determine constitutional questions.</p> <p>8. Appeal and error, § 1265*—when Appellate Court will presume statute constitutional. The Appellate Court will presume that a criminal statute is constitutional, as it has no jurisdiction over constitutional questions.</p> <p>9. Appeal and error, § 1718*—when constitutional question waived. Where the constitutionality of a criminal statute is involved, the review should be prosecuted to the Supreme Court, and seeking a review by the Appellate Court waives any constitutional question which might otherwise be raised.</p> <p>10. Costs, § 122*—when culprit may be sent to House of Correction for nonpayment of costs. Hurd’s Rev. St., ch. 38, sec. 452 (J. & A. jf 4152), authorizes imprisonment for the nonpayment of fines or costs, and section 448 of such chapter (J. & A. If 4148) provides that where jail sentences may be imposed upon defendants, the court may send the culprit to the House of Correction.</p> <p>11. Criminal law, § 391*—how statute authorizing working out fine and costs in House of Correction construed. Hurd’s Rev. St., ch. 38, sec. 448, (J. & A. If 4148) providing that the fine and costs imposed on a culprit sentenced to the House of Correction for nonpayment of such fine and costs may be “worked out” at the rate of $1.50 per day, is in the interest of the convicted person, as it minimizes his term of imprisonment.</p>

<p>Abstract of the Decision.</p> <p>1. Automobiles and garages, § 6*—when cross-examination of plaintiff as to prior collision improperly refused in action for damages for injury to automobile. Where, on the question of damages in a suit therefor, on account of the collision of defendant’s automobile with plaintiff’s automobile, defendant sought to elicit by cross-examination of plaintiff that plaintiff, a few minutes before the instant accident, had a collision between his machine and a horse-drawn truck which had caused damage to plaintiff’s machine, held to be error to refuse to permit such cross-examination.</p> <p>2. Automobiles and gabages, § 6*—when refusal of cross-examination of witness on question of damage to automobile erroneous. Where trial court refused to allow questions to be put to witness of plaintiff testifying as to the amount of damage done his automobile by defendant’s automobile in a suit for damages, such questions having reference to the amount of damage caused plaintiff’s car in a prior collision with a horse-drawn truck, and where such witness did not see plaintiff’s car until after both collisions, and his estimate of damages did not take into consideration the former collision, such refusal held to be error.</p> <p>3. Automobiles and gabages, § 6*—when refusal of cross-examination of loitness for plaintiff as to prior collision erroneous. Where plaintiff in an action for damages for injury to his automobile as a result of a collision with another automobile was allowed to prove by a witness that a police officer had stated to him that plaintiff was without fault in the collision on account of which suit is brought, and where the court refused to allow counsel for defendant to ask this officer whether plaintiff had not admitted to him that his car had a few minutes prior to the collision with defendant’s car been in collision with a horse-drawn truck, and that as a result of such collision his car had been damaged, held that such refusal was error.</p> <p>4. Automobiles and gabages, § 6*—when evidence inadmissible as being hearsay. Where the son of plaintiff was permitted to testify that a police officer had stated to him that his father was without fault in the collision with defendant’s automobile on account of which suit was brought, such testimony was clearly hearsay.</p>

<p>1. Appeal and error, § 1143*—when motion to strike hill of exceptions from flies and motion to vacate order denied. The proper dispatch of business in the Appellate Court will not permit of its waiting the convenience of counsel in returning files, and where appellee moves to strike bill of exceptions from the files and to affirm the judgment, and where the record, an examination of which is indispensable to decide the motion, is not in the files but in the possession of appellee, the motion is denied and a subsequent motion to vacate that order is also denied.</p> <p>2. Appeal and eeeoe, § 1143*—when Appellate Court on its own motion will vacate order. Having previously denied a motion to strike the bill of exceptions from the record, as well as a motion to vacate the order thereon and to entertain the prior motion, the Appellate Court on its own motion will vacate its order on the latter motion and allow the former where it is imperative on it to strike such bill of exceptions from the files.</p> <p>3. Appeal and eeeoe, § 784*—when hill of exceptions signed hy other than trial judge stricken from record. Where by the terms of orders allowing ninety days for the filing of a bill of exceptions and extending such time twenty days, the time for filing thereof expired on September 15, 1915, and on August 25, 1915, such bill of exceptions was presented to and signed by a judge other than the trial judge, and on September 21, 1915, it was signed and approved by the trial judge who ordered it filed nunc pro tunc as of August 25, 1915, and it was actually filed on September 21, 1915, and no statutory or other reason is shown by the record why the same was not signed and approved by the trial judge within the time allowed by the court, nor as to his disability by reason of death, sickness, etc., as required by Hurd’s Rev. St., ch. 110, sec. 81 (J. & A. jf 8618), and the record is silent as to whether or not the judge by whom the record was signed on August 25, 1915, was presiding in the trial court at the time and that due diligence had been shown to present it to the trial judge before presenting it to such other judge, and there is no recitation by the trial judge why the bill of exceptions was not presented to him within the proper time, the bill of exceptions will be stricken from the record.</p> <p>4. Appeal and error, § 843*—when other than trial judge may sign Mil of exceptions. Under Hurd’s Rev. St., ch. 110, sec. 81 (J. & A. f 8618), it is necessary to show inability of the trial judge to sign a bill of exceptions by reason of death, sickness or other disability, in order to authorize a judge other than the trial judge to sign such bill of exceptions.</p> <p>5. Appeal and error, § 843*—when trial judge may not sign MU of exceptions presented to other judge and order it filed nunc pro tunc. The presentation of a bill of exceptions, within the allowed time to a judge who did not preside at the trial and his marking it as presented does not authorize the trial judge to sign the same and order it filed nunc pro tunc as of the time when presented to such other judge, it not appearing that such other judge, at the time, was presiding in the same court where the action was tried, or that due diligence had been shown by defendant in seeking to present the bill to the trial judge before presenting it to such other judge, and there is no recitation by the trial judge why the record was not presented within the proper time.</p> <p>6. Appeal and error, § 784*—when Mil of exceptions defective. A bill of exceptions not having been presented to the trial judge within the proper time, a recitation by the trial judge as to the reason therefor is essential.</p> <p>7. Appeal and error, § 1751*—when judgment affirmed for lack of proper MU of exceptions. Where the bill of exceptions is stricken from the files and there is no error apparent in the remaining common-law record, the judgment will be affirmed.</p>

<p>Error to the Superior Court of Cook county; the Hon. Charles M. Foell, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Clarence N. Goodwin, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.</p>

<p>1. Replevin, § 47*—what constitutes sufficient demand for goods. Where a corporation styled “The New Columbus Buggy Company” makes demand for goods in possession of another and fails to designate itself under that style but leaves out, in making such demand, the word “new,” even though such technicality were availing, still where, on making such demand, defendant makes an absolute refusal to deliver the goods except on replevin, plaintiff is excused from the necessity of any further demand before bringing suit.</p> <p>2. Municipal Court of Chicago, § 29*—when presumed that rules authorize prosecution of case of first class without declaration. Under the Municipal Court Act, sec. 28, par. 9 (J. & A. If 3340), the Municipal Court of Chicago has power to adopt rules prescribing the same practice in first-class cases as in fourth-class cases; in fourth-class cases a declaration in replevin is not necessary, ■ and indulging the presumption of regularity of procedure and that the court observed its rules, it will be assumed, until the contrary is shown, that they authorized prosecution of a replevin suit in such first-class cases without a declaration.</p> <p>3. Replevin, § 123*—when evidence sufficient to show that sale not dona fide. In an action of replevin for two automobiles held by defendant as local sales agent for plaintiff under a contract to return the cars at a certain date if unsold, evidence held sufficient to sustain a finding that a sale of the cars to a sister-in-law of an officer of defendant was not bona fide.</p>

<p>1. Prostitution, § 3a*-—when venue properly laid in information. Where an information for pandering designates the State, county and city, where the court exercises its jurisdiction, and in the body thereof, states that the alleged offense was committed “at the City of Chicago” aforesaid, the venue is properly laid.</p> <p>2. Prostitution, § 3a*—when place where offense of pandering committed sufficiently designated. In a prosecution for pandering, the particular house in which the offense was committed need not be designated in the information, but it is a matter of proof which could have been limited by a bill of particulars, if asked for.</p> <p>3. Prostitution, § 3a*—when information charging pandering sufficient. An information for pandering under Hurd’s Rev. St., 1913, ch. 38, par. 57g (J. & A. f 3863), which charges substantially in the language of the statute that defendant did by means enumerated therein “procure a female inmate for a house of prostitution,” and did cause, etc., “a female person to become an inmate” of such house, and by promises, etc., caused “an inmate * * * to remain therein as such inmate” and did by fraud, etc., procure such a person “to become an inmate of a house of ill fame and to enter a place in which prostitution is allowed and encouraged within the State,” and did “procure a female person to come into this State for the purpose of prostitution,” states several acts, each of which constitutes the offense of pandering, and they are not inconsistent or repugnant, and they may be charged in one count.</p> <p>4. Prostitution, § 3a*—when information for pandering not had on account of duplicity. The offense of procuring a female person to come into this State for the purpose of prostitution may constitute a distinct transaction from causing her to enter a house of prostitution or to remain therein, but they may be so connected as to constitute but different phases of one transaction, and there being nothjng on the face of an information charging such several acts, to- show that they were committed at different times or were distinct and separate offenses, the information is not bad on account of duplicity.</p> <p>5. Peostitution, § 4*—when admission of evidence as to bringing prostitute into the State prejudicial error on prosecution for pandering. In a prosecution for pandering where it was charged both that defendant caused a female to enter a house of prostitution and that he induced her to come into the State for the purpose of prostitution, and the evidence tended to show that matters pertaining to her entry took place in the latter part of 1914, but evidence relating to the latter charge was to the effect that defendant sent for her in 1912 to come from another State into this State, held that the evidence indicated two distinct offenses and had no relation to the charge actually relied on, that of causing a female person to enter a house of prostitution, and in view of conflicting testimony, it was calculated to prejudice defendant with the jury, and that the admission of such testimony, over defendant’s objection as to its competency, was reversible error, especially as the time was not within the statute of limitations, the information having been filed in April, 1915.</p>

<p>Appeal from the County Court of Cook county; the Hon. A. D. Webb, Judge, presiding. - Heard in the Branch Appellate Court at the October term, 1914.</p>

<p>Abstract of the Decision.</p> <p>1. Bastards, § 22*—when evidence insufficient to establish parentage of alleged father. In a prosecution for bastardy where the case of relatrix rested entirely upon her unsupported evidence, held that the evidence preponderated in favor of defendant, it appearing that the first act of intercourse with defendant according to relatrix’s testimony, was 233 days before the birth of the child.</p> <p>2. Bastards, § 20*-—when burden of proof upon mother to show that child prematurely born. In a bastardy prosecution where the testimony.of relatrix shows that the first act of intercourse with defendant was 233 days before the birth of the child, the burden is upon her to establish by a preponderance of the evidence that the child was of premature birth.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Joseph Sabath, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.</p>

<p>1. Fraud, § 115*—when evidence sufficient to show fraud in procuring contract. In an action for wages by laborers, held under the evidence that contract interposed, as a defense was procured by fraud, it appearing that plaintiffs had been in this country only a short time, were ignorant of English, and that they had signed a contract which made them subcontractors, and which they thought was a receipt for rubber boots.</p> <p>2. Master and servant, § 65*—when servant may recover value of services. Where a contract of employment is invalid because it was obtained by fraud, the servant is entitled to recover the reasonable value of his labor.</p>

<p>' Insurance, — when provision of policy limiting the amount of total insurance recoverable on life of child valid. A provision in a life insurance policy limiting the right of recovery on all policies on the life of a child to a specified sum, presumably only enough to adequately cover expenses of the last illness and burial, held valid so as to prevent recovery on such a policy where the beneficiaries had already recovered on other policies a sum equal to the amount limited by the policy.</p>

<p>Abstract of the Decision.</p> <p>1. Master and servant, § 702*—when evidence sufficient to sustain finding in favor of servant as to cause of explosion in foundry. Where plaintiff in an action for damages for personal injuries claims that an explosion whereby he was injured in defendant’s foundry was caused by the fall of molten metal and coke in combustion from a cupola into water or a damp place under such cupola and defendant claimed that such explosion was not so caused but ascribed it to a rush of gas into a pocket formed by the floor of a charging platform and a partition and the ignition of such gas by the hot metal and flaming cóke, and it appeared that there was conflicting testimony as to the quantity and exact location of water on the ground around or under the cupola, and variant views of witnesses concerning, the respective causal theories of the explosion, evidence held sufficient to sustain a finding that plaintiff had proved his claim as to the cause of explosion.</p> <p>2. Master and servant, § 831*—when party bound by finding of jury on requested interrogatory. Where plaintiff alleged and introduced evidence to the effect that the injuries sustained by him in defendant’s foundry were caused by an explosion resulting from the dumping of a cupola containing molten metal and burning coke into water, and where on defendant’s request a special interrogatory was given to the jury whereby they were asked whether the explosion was so caused, to which the jury answered yes, defendant was conclusively bound by this finding, he having made no motion to set it aside, and there being no assignment of error in that regard.</p> <p>3. Damages, § 188*—when evidence sufficient to establish personal injuries to servant in foundry. In an action for damages for personal injuries to an employee in a foundry, evidence held sufficient to establish that plaintiff had suffered personal injuries, there being evidence that the explosion was of sufficient force to wreck the building, and medical testimony that plaintiff was suffering from a dilation of the heárt and an injury to the kidneys.</p> <p>4. Damages, § 115*—when verdict for damages for personal injuries not excessive. Injuries sustained by a workman in a foundry explosion resulting from dumping of hot contents of a cupola into water, held to justify a verdict for $1,250, it appearing that considerable shock must have resulted inasmuch as he was only a few feet away from an explosion sufficiently violent to wreck a brick building, that there is testimony of physicians as to the presence of dilation of the heart and injury to the kidneys, even though plaintiff may have affected to be in more physical distress than is warranted by the facts.</p> <p>5. Master and servant, § 833*—when refusal of instructions harmless error. The refusal to give instructions requested by defendant in an action by a foundry employee for injuries due to an explosion from molten metal striking water when dumped upon the ground, that the jury must find defendant not guilty if they found that molten metal fell into the water and irrespective of the negligent order which caused the cupola of metal to be dumped before plaintiff had time to get out of the building, held harmless error where the jury in answering special interrogatories asked by defendant found that the molten metal fell into the water and caused the explosion.</p> <p>6. Appeal and error, § 1035*—when improper argument or conduct of counsel not considered on review. Alleged improper argument or conduct of counsel will not be considered in the court of review where defendant does not assign error on such ground.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Samuel C. Stough, Judge, presiding. Heard in this court at the October term, 1915.</p>

<p>1. Vendor and purchaser, § 65*—when provision in contract for delivery of warranty deed modified. A provision in a contract for the sale of real estate relative to a warranty deed being ready for delivery, held modified by another provision that it should be deposited with a title and trust company after the first two payments under the contract had been so deposited.</p> <p>2. Appeal and error, § 367*—when defense not raised in answer unavailable on appeal. Where in proceedings in equity to declare void a contract for the sale of real estate, defendant contended for the first time in the Appellate Court that complainant did not make proof of ownership, and did not, in his answer deny the averment of ownership in the bill of complaint, held the defendant could not avail himself of such matter of defense.</p> <p>3. Equity, § 156*—when defendant must set out nature of defense in answer. The rule in chancery is that a defendant is bound to apprise the complainant by his answer of the nature of the defense he intends to set up, and the defendant cannot avail himself of any matter of defense which is not stated in his answer even though it should appear in the evidence.</p> <p>4. Equity, § 431*—when point not raised before master waived. A point which is not raised before the master by objection or exception to his report is waived.</p> <p>5. Contracts, § 164*—when parol evidence as to negotiations leading to land contract inadmissible. Where a contract for the sale of lands is plain and unambiguous, evidence as to negotiations leading up to it, in equity proceedings to declare same forfeited, is inadmissible and such evidence is properly disregarded by the master.</p> <p>6. Vendor and purchaser, § 151*—when tender of deed excused by failure to comply with contract. Defendant’s repeated failures to comply with a contract whereby he had agreed to purchase real estate from complainant, held to amount to a refusal to so comply, which, under the terms of the contract, excused complainant from tendering a deed to defendant, it appearing that the terms of the contract obligated him to pay a specified sum within a certain period after a specified date, and such payment was repeatedly demanded for several months when complainant elected to declare the contract forfeited.</p> <p>7. Vendor and purchaser, § 67*—when provision in contract reciting payment as earnest money construed as referring to payment on purchase price. Provision in contract for sale of real estate that “said purchaser has paid $1,000 as earnest money to be applied on such purchase when consummated,” construed to mean that the purchaser parted with the earnest money for the benefit of the seller and that he paid it as a part of the purchase money.</p> <p>8. Vendor and purchaser, § 67*—when vendor entitled to earnest money as liquidated damages. Provisions in contract for the sale of real estate with reference to earnest money paid by the purchaser, construed to mean that in case of defects in title which are not cured, at purchaser’s option the contract becomes void and the earnest money shall be returned, but if the purchaser fails to perform, then, at the seller’s option, the earnest money should be retained by the vendor as liquidated damages, and this regardless of whether the earnest money was delivered to the seller or by agreement was held by a third party.</p> <p>9. Equity, § 9*—when equity will determine whether party rightfully declared penalty forfeited. A court of equity will not interfere with contracts providing for penalties and forfeitures, if the parties proceed strictly according to their terms, except in cases of fraud, mistake or unconscionable provisions but where the aid of such court is sought to declare whether a party rightfully declared a penalty forfeited, it is very different from asking the court itself to declare such forfeiture.</p> <p>10. Equity, § 512*—when decree does not declare a forfeiture. In chancery proceedings where complainant seeks to have a contract for the sale of real estate from him to defendant declared void and other equitable relief, and where under such contract defendant paid earnest money to a title and trust company to be applied on his purchase when completed, and he tries to obtain it from the stakeholder and such money is complainant’s own according to the terms of the contract, and, inasmuch as no contractual relations exist, defendant cannot sue such holder in assumpsit, and the court incidentally must decide whether the forfeiture which complainant has declared was justified under all the circumstances of the case, there is no declaration of a forfeiture but simply a finding that the declaration of forfeiture is warranted under the circumstances.</p> <p>11. Vendor and purchaser, § 151*—when tender of deed unnecessary. Where complainant sought in a court of equity to have a contract, whereby he agreed to sell real estate to defendant, declared void, a tender of deed to defendant held not necessary, as by means of defendant’s default it would have been a useless act, and as by the terms of the contract it was provided that there should be no delivery to defendant but simply a deposit with a title and trust company.</p> <p>12. Vendor and purchaser, § 116*—what constitutes tender of performance of contract for sale of real estate 6y vendor. Where the obligations in a contract for the sale of real estate became mutual and concurrent by the service of a notice on the part of the vendor whereby he offered to perform, held such offer of performance was a tender of performance.</p> <p>13. Vendor and purchaser, § 116*—what constitutes tender of performance of contract for sale of real estate. A tender of performance in the case of mutual and concurrent promises in a contract for the sale of real estate does not mean the same kind of an offer as when used in reference to the payment of a debt due in money, but only means a readiness and willingness accompanied by ability on the part of the parties.</p> <p>14. Vendor and purchaser, § 277*—when vendor may declare contract for sale of land forfeited. Under the terms of contract for sale of real estate and under the circumstances shown by the evidence, complainant vendor held to have the right to declare such contract forfeited.</p>

<p>Abstract of the Decision.</p> <p>1. Vendos and purchaser, § 111*—when evidence sufficient to sustain finding that contract purchaser of land refused to perform contract because of financial inability. Where defendant, in an action to declare a contract for purchase of land forfeited, bought such land from complainant, and upon delivery of the abstract to him failed to make payments due under the terms of the contract, evidence held sufficient to sustain a finding of the master that the reason why defendant did not make the payments was his inability to raise the money, it not appearing that he gave any other reason or made any objection to the title of complainants.</p> <p>2. Vendor and purchaser, § 56*—when objections to contract of purchase of land waived. By basing his refusal to perform a contract for the purchase of real estate on his inability to do so, a contract purchaser waives all other grounds of objection.</p> <p>3. Vendos and purchases, § 111*—when evidence insufficient to establish giving of additional time to vendee for payment of purchase price. On a bill to declare forfeited a contract for the purchase of land, evidence held insufficient to establish that vendors agreed to give vendee additional time for payment of the purchase price, it appearing that his refusal to perform was upon the sole ground that he did not have the money to make the payments.</p> <p>4. Vendos and purchases, § 148*—when purchaser waives objection to title. Where a conveyance is refused on the ground that the purchaser does not have the money, he cannot object to the title.</p> <p>5. Vendos and purchases, § 135*—when not necessary that vend- or have title to land. It is not necessary that vendors of real estate have title until the time they have agreed to deposit a deed in escrow, if before that time the vendee had made default and could not require the vendors to obtain title.</p> <p>6. Vendos and purchaser, § 151*—when tender of deed not necessary. Where vendors of real estate in their contract of sale have agreed to deposit the deed with a third party after the vendee has deposited purchase money in accordance with the contract, a tender of the deed is not necessary, and all that is necessary is an offer by the vendors to make a deed and deposit it, providing the vendee would deposit the payments and perform his contract.</p> <p>7. Vendos and purchaser, § 151*—when tender of deed unnecessary. The law does not require a needless formality, and an actual tender of a deed is unnecessary where the seller is ready, able and willing to perform on his part, and a tender would be a mere useless form.</p> <p>8. Vendor and purchases, § 118*—when vendor need only prove ability and willingness to perform contract. If before or at the time of performance the purchaser has declared his intention not to perform, or refuses to do so, the seller need only prove that he was ready and willing to perform on his part.</p> <p>9. Vendor and purchaser, § 118*—when tender of performance by vendor unnecessary. If tender of performance by the vendor would prove ineffectual, the law does not require a vain act, and such tender is unnecessary.</p> <p>10. Vendor and purchaser, § 111*—when evidence insufficient to show that notice of forfeiture unreasonable. On a bill by a vendor to declare void a contract of sale of land and to require payment of earnest money to complainant by a trustee, evidence held insufficient to show that the notice of forfeiture of earnest money was unreasonable.</p> <p>11. Equity, § 512*—when decree does not declare a forfeiture. A decree on a bill by a vendor to declare void a contract of sale of land and to require payment of earnest money is not objectionable where it does not in itself decree or declare a forfeiture but merely decrees that defendant by his own acts prior to the filing of the bill rescinded the contract or caused a forfeiture, and that the title to the earnest money was in complainants at the time the bill was filed.</p> <p>12. Equity, § 512*—when decree for payment of earnest money does not provide for forfeiture. Earnest money in the hands of a trustee belonging to the seller because of the default of the purchaser cannot be returned to the purchaser but may be decreed to be paid by the trustee to the seller, and such a decree does not provide for the enforcement of a forfeiture.</p> <p>13. Vendor and purchaser, § 67*—when vendor entitled to earnest money. Earnest money is a guaranty that the contract will be performed, and if the sale goes on, it applies as part payment of the purchase money, but if there is a default on the part of the purchaser, he has no right to recover the deposit and it belongs to the seller.</p>

<p>Error to the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in this court at the March term, 1915.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>1. Wills, § 168*—when Circuit Court no jurisdiction to entertain till to contest will. The time for filing a hill in chancery to contest a'will as limited in Hurd’s Rev. St., ch. 148, sec. 7 (J. & A. If 11548), is a jurisdictional fact, without proof of which the Circuit Court cannot proceed, and unless relief is sought within the statutory time the court has no jurisdiction to entertain the bill.</p> <p>2. Wills, § 163*—when equity no jurisdiction to entertain till to construe will. Under Hurd’s Rev. St., ch. 148, sec. 7 (J. & A. If 11548), providing that one who seeks to contest a will must appear by his bill in chancery within one year after the probate of such will, the right to contest given by the statute does not exist without it, and one who seeks to avail himself of such statute must show that he is within its provisions where he does not come within the excepted classes of infants and persons non compos mentis.</p> <p>3. Wills, § 175*—when cross-till to contest will automatically dismissed. When a court decrees that complainant who seeks to contest a will is not an interested party and for that reason only dismisses the original bill, the cross-bill filed in such cause automatically suffers the same fate.</p> <p>4. Wills, § 168*—when statute of limitations tegins to run as to right to contest will. Where a will and codicil are admitted to probate by order of the Probate Court and thereafter an appeal is taken from such order to the Circuit Court which affirms it, the probate of the will and codicil is firmly and finally fixed on the date when such judgment of affirmance is recorded in the Probate Court, and under Rev. St., ch. 148, sec. 7 (J. & A. If 11548), all parties in interest are limited to a year from such date within which to contest such will and codicil.</p> <p>5. Wills, § 169*—who may contest. The right to contest a will by statute is confined to those having an interest therein, and no one is permitted to maintain a bill without such interest.</p> <p>6. Wills, § 171*—when cross-complainant in suit to contest unll estopped by admissions to claim, interest of complainant to maintain bill. Where complainant in a suit in chancery to contest a will was adjudged never to have had any interest in such will and the correctness of such finding was not challenged by cross-complainant, who was the only person interested in that phase of the decree, held, that such cross-complainant in effect admitted complainant’s lack of interest, and that complainant therefore had no right at any time to maintain the bill.</p> <p>7. Wills, § 175*—what is effect of dismissal of bill to contest will. Where a suit to contest a will and codicil is commenced previous to the date when such will and codicil are admitted to pr'obate, and more than two years later a cross-bill to contest the validity of the codicil is filed in such suit, and complainant is not an interested party, and the court so determines in dismissing his bill, the position of the parties remains the same as it would have been had complainant never filed his bill, and hence no bill has been filed by any person interested in the will of deceased within the time limited by Rev. St., ch. 148, sec. 7 (J. & A. If 11548).</p> <p>8. Wills, § 168*—when answer to bill to contest will does not ■constitute assertion of right to contest will ivithin statutory limit. An answer to a bill of complaint filed to contest a will and codicil cannot be considered as an assertion of a right to contest such codicil within the time limited by Rev. St., ch. 148, sec. 7 (J. & A. If 11548), when it is not filed until more than two years have elapsed since the order of probate.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Joseph Z. Uhlir, Judge, presiding. Heard in this court at the October term, 1915.</p>

<p>1. Master and servant, § 11*—when contract of employment definite as to time. An agreement made in May for an employment to continue “until the winter is over” is definite as to time as the court will take judicial notice that winter comprises a period of three months, whether reckoned astronomically from the winter solstice, on December 22nd, to the vernal equinox, on March 21st, or according to the conventional method used in the United States as including December, January and February.</p> <p>2. Evidence, § 20*—when court will take judicial notice of the seasons of the year. The courts will take judicial notice of the seasons of the year.</p> <p>3. Master and servant, § 50*—when evidence sufficient to sustain finding that servant arbitrarily discharged. In an action by a servant against his master for damages for breach of the contract of employment, evidence held sufficient to sustain a finding that plaintiff was arbitrarily discharged, it appearing that the right to so discharge him rested on the contention that he failed to return on a Saturday evening to clean out the ashes in the furnace after having, with the assumed consent of his employer, completed his work; that plaintiff was a union baker and that nine hours constituted a day’s work of a union baker; that on such Saturday, plaintiff had worked three and one-half hours in excess of that time, and that cleaning out the ashes from the furnace was not a part of plaintiff’s duty but devolved upon plaintiff’s assistant, and that defendant did not claim that plaintiff’s service as a baker was not satisfactory.</p> <p>4. Master and servant, § 30*—when work of servant must be satisfactory to the employer. It is implied in every contract of employment that the work of the servant, without any specific agreement, must be done to the satisfaction of his employer.</p> <p>5. Master and servant, § 29*—when master may not discharge servant. Even thought an employer has the right to discharge an employee “for any reason,” if he in fact discharges him without any reason and without cause, he breaks the contract of employment and is liable for damages.</p>

<p>Error to the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in this court at the October term, 1915.</p>

<p>1. Depositions, § 22*—when deposition of assignor of account inadmissible in suit by assignee. In a suit upon an assigned aecount, a deposition of the assignor taken by defendants is inadmissible under section 33 of the Municipal Court Act (J. & A. If 3344), where there is no evidence that the assignor was in any manner connected with or interested in the assignee or its business, or that he was liable as assignor to the latter in the event that assigned account was not collected.</p> <p>2. Conspiracy,- § 13*—when evidence inadmissible. Before evidence of a conspiracy is admissible against a party to a suit, such party must first be proven to have been a co-conspirator with the person whose statements out of his presence, are proposed to be given in evidence.</p> <p>3. Evidence, § 221*—when inadmissible as hearsay. In a suit on an assigned account, the evidence in which shows that a check had been sent in payment of the account but had come into the hands of a third person who changed the name of the payee, raised the amount and cashed the check, the deposition of a third person as to other similar transactions is inadmissible where no connection is shown between plaintiffs and deponent.</p> <p>4. Evidence, § 67*—when inadmissible as irrelevant. In a suit on an assigned account, certified copies of documents in a bankruptcy proceeding against the assignor in a Federal court in another district are properly excluded as irrelevant.</p>

<p>1. Indemnity, § 9*—when indemnity bond not for benefit of third persons. In action by the obligee of an indemnity bond against the surety for the use of a third person, the condition of the bond examined and the bond held not to be for the benefit of third persons.</p> <p>2. Principal and surety, § 6*—when obligation of surety strictly construed. The obligation of a surety must be strictly construed and cannot be extended by implication or construction.</p>

<p>Error to the Superior Court of Cook county; the Hon. Theodore Brentano, Judge, presiding. Heard in the Branch Appellate Court at. the March term, 1915.</p>

<p>Error to the Circuit Court of Cook county; the Hon. John A. Dowdall, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Hugh R. Stewart, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.</p>

<p>Abstract of the Decision.</p> <p>1. Touts, § 30*—when evidence sufficient to sustain finding of negligence of joint tort feasor. In an action against joint defendants to recover for negligent damage to plaintiff’s beer wagon and beer, where plaintiff had a finding against one defendant, the court dismissing the action as to the other, the plaintiff need only show, to hold the finding, that some negligent act of the defendant found guilty contributed to the injury.</p> <p>2. Torts, § 30*—when evidence sufficient to sustain finding that negligence of one defendant contributed to injury. In an action to recover for negligent injury to plaintiff’s beer wagon and beer by a collision between another wagon and a street car, in such fashion as to cause such other wagon to be thrown against plaintiff’s wagon, damaging it, and causing certain barrels of beer to fall off and be broken, the beer flowing out, evidence held sufficient to warrant a finding that negligence on the part of the defendant found guilty contributed to the accident.</p> <p>3. Torts, § 23*—when plaintiff may recover against one or ail of joint tort feasors. In an action for negligence where there are joint tort feasors, plaintiff may recover against one or all of such tort feasors.</p> <p>4. Tobts, § 34*—when joint tort feasor found guilty estopped to claim that other defendant should have been found guiltj). In an action for negligence where there are two defendants, and the action is tried without a jury, a defendant found guilty is estopped to claim that the court may have erred in not also finding the other defendant guilty, the negligence of such other defendant not excusing negligence on the part of the defendant found guilty.</p>

<p>Abstract of the Decision.</p> <p>1. Tbial, § 305*—what constitutes sufficient finding that defendant made unconditional promise to pay debt. In an action to recover the balance due on an account, where it appeared that defendant had been discharged in bankruptcy since the cause of action accrued, but had since the discharge made a payment on account of the debt, a finding and judgment for plaintiff must be taken as a finding that defendant made an unconditional promise to pay the debt at the time of the payment in question.</p> <p>2. Bankruptcy, § 85*—when evidence sufficient to sustain finding for plaintiff in action on discharged, account. In an action to recover the balance due on an account, where it appeared that since the cause of action accrued defendant had- been discharged in bankruptcy, but had since the discharge made a payment on account of the debt, a finding for plaintiff held not clearly and manifestly against the weight of the evidence.</p>

<p>1. Marriage, § 12*—when justices of the peace have power to perform marriages. Section 60 of the Municipal Court Act (J. & A. If 3377), abolishing the office of justice of the peace in the City of Chicago, applies only to the judicial acts of such justices, and does not affect the power granted to such justices by section 4 of the Marriage Act (J. & A. If 7348) to perform marriages.</p> <p>2. Marriage, § 12*—what is nature of power of judicial officers to. perform marriages. Justices of the peace and other judicial officers empowered by section 4 of the Marriage Act (J. & A. If 7348) to perform marriages are so authorized merely as persons holding certain offices and not by reason of the judicial powers incident to their offices.</p> <p>3. Marriage, § 21*—when marriage presumed valid. In actions involving the validity of a marriage, the public is to be safeguarded by resolving all doubts in favor of the validity of the marriage.</p> <p>4. Marriage, § 8*—when marriage of minors without consent of parents valid. Section 3 of the Marriage Act (J. & A. f 7347), providing that a male minor of the age of eighteen and upwards and a female minor of the age of sixteen and upwards may marry with the consent of their parents or guardians given in a prescribed manner, is merely directory, there being no words or prohibition or nullification, and a want of such consent will not invalidate the marriage.</p> <p>5. Infants, § 20*—What is reason for rule upholding validity of contracts of marriage of minors above age of consent. The rule that marriages of minors above the age of consent are binding contracts is an exception to the ordinary rule regarding the contracts of minors, the reason being that the body politic is directly interested in the stability of the marriage relation.</p> <p>6. Marriage—what is effect of statutes designating age at which persons may contract marriage. Statutes designating the age at which persons may contract marriage are to be regarded as raising the age of consent as established by the common law.</p> <p>7. Marriage—what was effect of statute raising age of consent for ■marriage. Section 3 of the Marriage Act (J. & A. if 7347), providing that a male minor of the age of eighteen and upwards and a female minor of the age of sixteen and upwards may marry under certain conditions was intended by the legislature to raise the age of consent or discretion from fourteen and twelve years respectively, as established by the common law, to eighteen and sixteen years respectively.</p> <p>8. Marriage, § 29*—when marriage between minors below age of consent may be annulled. A marriage between minors under the ages established by section 3 of the Marriage Act (J. & A. ff 7347) may be annulled by either party before arriving at the age of consent.</p> <p>9. Marriage, § 16*-—how marriage between persons under age of consent rendered valid. A marriage between persons under the ages prescribed by section 3 of the Marriage Act (J. & A. If 7347) is valid if after arriving at the age of consent the parties continue the marriage relation, they being deemed in such case to have ratified the marriage.</p> <p>10. Marriage, § 8*—when failure to file consent of parent to marriage of minor not conclusive as to age of minor. In a suit to annul a marriage on the ground, inter alia, of the nonage of the husband, the fact that the consent of complainant’s parent was not filed as required by section 3 of the Marriage Act (J. & A. f 7347) is not conclusive as to the age of the complainant at the time of the marriage, the statute being merely directory.</p> <p>11. Appeal and error, § 1271*—when presumed that chancellor considered questions of fact and lam and determined controverted questions of law in favor of complainant. In a suit to annul a marriage on the ground, inter alia, of the nonage of complainant at the time of the marriage, where the bill was dismissed for want of equity, it must be presumed, in the absence of anything in the record to show the contrary, that the chancellor, in so dismissing the bill, considered the question as one of fact as well as of law, and that all controverted questions of law were determined in favor of the defendant.</p> <p>12. Marriage, § 26*—when evidence to rebut presumption of validity of marriage sufficient. The presumption which arises in the absence of evidence to the contrary that a marriage is regular and valid may be rebutted, but the rebutting evidence must be strong, distinct, satisfactory and conclusive.</p> <p>13. Marriage, § 26*—when evidence sufficient to sustain finding in favor of validity of marriage. A finding in favor of the validity of a marriage will be sustained if there is any evidence to support it.</p> <p>14. Marriage, § 29*—when marriage relation not dissolved. Since the standard of public morals is in large measure affected by the degree of vigilance exercised to preserve the sanctity of marriage, the courts view with a jealous eye any attempt to tear asunder the bonds of matrimony.</p> <p>15. Evidence, § 475*—when chancellor may consider demeanor of witnesses in determining preponderance of evidence. A chancellor hearing the evidence in a suit to annul a marriage on the ground of the nonage of one of the parties has the right, where the evidence is conflicting, to take into consideration the appearance and demeanor of the witnesses on the stand in determining where the preponderance lies.</p> <p>16. Appeal and error, § 1395*-—when finding of chancellor not disturbed on appeal. A court of review will not disturb the finding of a chancellor who sees the witnesses and hears them testify unless it can be seen from the whole testimony that the finding is clearly and manifestly against the weight of the evidence.</p> <p>17. Marriage, § 29*—when finding for defendant in suit to annul marriage sustained by evidence. In a suit to annul a marriage on the ground of the nonage of one of the parties at the time of the marriage, and on other grounds, where the evidence was conflicting, a finding for the defendant held not clearly and manifestly against the weight of the evidence.</p>

<p>Error to the Criminal Court of Cook county; the Hon. Theodore Brentano, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915._</p>

<p>1. Garnishment, § 24*—what assets garnishment process will reach. Garnishment process will reach only such assets in the hands of the garnishee as can be reached by an action at law, and does not affect assets which are purely equitable.</p> <p>2. Garnishment—when defense against nominal plaintiff not available against real party in interest. In garnishment proceedings, a defense which is good against the nominal plaintiff alone, but which has no merit as between the real parties, cannot be availed of as against a beneficial owner in whose name the action is brought.</p> <p>3. Statutes, § 216*—when construed in accordance with decisions of other States having similar statutes. Where a statute, such as the Bulk Sales Act, is substantially the same as statutes in other States which have received a judicial construction in the States where adopted, it is to be assumed that the General Assembly, in passing the act intended that such act should receive the construction given it by the courts of such other States, unless such construction is inconsistent with the spirit and policy of our laws.</p> <p>4. Garnishment, § 24*—when goods and chattels obtained by void bulle sale from debtor subject to garnishment. Goods and chattels obtained by a sale from a debtor contrary to the provisions of the Bulk Sales Act, and therefore void as to the creditors of the vendor, may be reached by such creditors in garnishment proceedings.</p>

<p>Abstract of the Decision.</p> <p>1. Evidence, § 475*—uihat constitutes preponderance. The question of the preponderance of the evidence does not depend solely on the number of the witnesses testifying.</p> <p>2. Sales, § 329*—what evidence may be considered in determining preponderance of evidence in action against oumer of building for materials sold. In an action to recover for paints, etc., where the defense was that defendant did not order the goods, which defendant claimed were for the benefit of his lessee, the court trying the case without a jury has the right to take into consideration, in determining the preponderance of the evidence, the fact that the goods were delivered at and used in decorating defendant’s building, and that when defendant received a bill for the goods he did not repudiate liability, although such facts, of themselves, might not be sufficient to warrant the inference that defendant admitted responsibility for the bill.</p> <p>3. Saxes, § 329*—when evidence sufficient to sustain finding that owner of building assumed responsibility for payment for goods. In an action to recover for paints, etc., delivered at and used in decorating defendant’s building, where the evidence was conflicting as to whether defendant assumed responsibility for the bill, a finding for plaintiff held supported by the evidence.</p>

<p>Abstract of the Decision.</p> <p>1. Witnesses, § 33*—when husband competent witness for wife. The husband of a married woman is a competent witness in her behalf under section 5 of the Evidence Act (J. & A. If 5522), in a suit against the wife to recover for architect’s services.</p> <p>2. Tbial, § 68*—when denial to counsel of right to make full offer of what mil be proved by witness reversible error. It is reversible error to deny to counsel the right to make fully his offer of what he intends to prove by a witness whose testimony the court has intimated an intention to exclude, although the other side objects that the offer was merely to prove what another witness had already testified to.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Mabcus A. Kavanagh, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>Abstract of the Decision.</p> <p>1. Judgment, § 58*—when judgment by confession set aside. On timely application to set aside a judgment by confession, it is the court’s duty to allow defendant to plead if a meritorious defense is shown by proper affidavits.</p> <p>2. Judgment, § 82*—when affidavits sufficient to warrant granting of motion to set aside judgment by confession. Affidavits on a motion to set aside a judgment by confession examined and held to set up a meritorious defense.</p> <p>3. Judgment, § 82*—when application to set aside judgment by confession not defeated by laches. Affidavits on motion to set aside judgment by confession examined and held not to show such laches as to require the denial of the motion.</p>

<p>1. Appeal and ebbob, § 839*—when time of filing of bill of exceptions to be determined by the record. The time at which the bill of exceptions was filed must be determined by the record, and resort cannot be had to statements of counsel or affidavits.</p> <p>2. Appeal and ebbob, § 846*—what proper practice at common law as to date of signing and sealing bill of exceptions. The proper practice at common law and under earlier Illinois practice was to insert, as the date of the signing and sealing of a bill of exceptions, the date of the trial or the time when the exceptions were actually taken.</p> <p>3. Appeal and ebbob, § 846*—when date of signing of bill of exceptions fictitious. According to the practice obtaining in Illinois, the date upon which a bill of exceptions is recited to have been signed is ordinarily and usually fictitious.</p> <p>4. Appeal and ebbob, § 846*—when face of bill of exceptions shows it not to have been signed on presentation. Pace of bill of exceptions examined and held to show that it was not signed at the time when it was presented.</p> <p>5. Appeal and ebbob, § 846*—when face of record shows bill of exceptions to have leen signed on day of filing. Matters appearing of record examined and held to show that the bill of exceptions was not signed on the date" inserted therein, but that it was actually signed on the day it was filed.</p> <p>6. Appeal and ebbob, § 846*—when recitation in lili of exceptions as to date of signing not conclusive. The recitation in a bill of exceptions as to the date of its signing is not conclusive, but the date may be determined by an examination of the face of the record.</p> <p>7. Appeal and ebbob, § 846*—what proper practice as to dating lili of exceptions. The proper practice is that a bill of exceptions should recite the actual date on which it is signed.</p> <p>8. Appeal- and ebbob, § 846*—when Mil of exceptions signed in apt time. Where a bill of exceptions, presented within the time allowed, is signed three days after the date to which the time of filing has been extended by order of court entered on stipulation of counsel, it is signed in apt time.</p>

<p>1. Conspiracy, § 14*—when evidence insufficient to shoio illegal boycotting. On a bill to enjoin defendants from unlawfully conspiring to boycott complainant’s business, evidence examined and held not to show an illegal act on defendant’s part.</p> <p>2. Conspiracy, § 8*—when distribution of printed matter not illegal. On a bill to enjoin defendants from printing or publishing any printed matter calling attention to the fact that complainant’s business is unfair and not unionized or that a strike is on, held that the distribution of a publication purporting to give information regarding the strike and of printed matter stating that complainant was unfair was not illegal.</p> <p>3. Conspiracy, § 14*—when evidence insufficient to show conspiracy beyond reasonable doubt. On a bill and cross-bill, each alleging a conspiracy to injure business, evidence examined and held insufficient to establish a conspiracy beyond a reasonable doubt, as required by law.</p> <p>4. Conspiracy, § 8*—when picketing illegal. Where the facts show that there was no strike, and the pickets made statements not warranted by the facts, and by reason of the picketing crowds congregated which interfered with complainant’s business, the picketing was properly enjoined.</p> <p>5. Conspiracy, § 14*—-when evidence sufficient to show picketing. On a bill to enjoin defendants from interfering with complainant’s business, evidence that defendants patrolled in front of complainant’s restaurant, in which there was no strike, stating to each other so that they could be heard by passers-by that there was a strike on at such place; “We want $8 for six days’ work”; “Don’t eat under police protection,” and words of similar import, is sufficient to show picketing tending unlawfully to interfere with complainant’s business against which an injunction would be granted.</p> <p>6. Conspiracy, § 16*—when decree enjoining picketing and patrolling modified. On a bill to enjoin picketing and patrolling complainant’s place of business, where the evidence shows the picketing was not justified, the decree enjoining such picketing and patrolling should not be qualified by adding thereto the words “in such a manner as to intimidate, threaten or coerce any person or persons from entering or who may desire to enter said premises for the purpose of patronizing the complainant, or fsr any lawful purpose whatsoever,” and on appeal the decree will be modified by striking the qualification therefrom.</p>

<p>Abstract of the Decision.</p> <p>1. Automobiles and garages, § 5*—when evidence sufficient to show keeper of garage gratuitous bailee. In an action against the proprietor of a garage for the loss of a motorcycle, evidence examined and held sufficient to sustain a finding that defendant was a gratuitous bailee.</p> <p>2. Automobiles and garages § 5*—when garage keeper storing vehicle liable as gratuitous bailee. The keeper of a garage who stores a vehicle over night to accommodate its owner and without agreement as to compensation is a mere gratuitous bailee and is liable for gross negligence only, or a want of slight care or diligence.</p> <p>3. Automobiles and gabages, § 5*—when garage keeper exercising ordinary care not liable for loss of stored vehicle. A garage keeper who, for compensation, stores a vehicle for the owner is not liable for its loss by theft, if he exercised ordinary care to prevent it.</p> <p>4. Bailment, § 27*—when burden of proof on bailee and when on bailor in action for loss of bailment. In an action by a bailor against a bailee to recover damages for the loss of the bailment, where plaintiff shows the delivery of the bailment to defendant and the failure of defendant to make redelivery, the burden is on defendant to show the exercise of the degree of care required by the nature of the bailment; but where it appears that the bailment was lost, stolen or destroyed by fire, the burden of proving negligence is on the plaintiff.</p> <p>5. Automobiles and gabages, § 5*—when garage keeper not liable for theft of motorcycle. ( In an action against a garage keeper to recover for the loss of plaintiff’s motorcycle, where the evidence shows that plaintiff had left the machine in defendant’s garage over night, that he had advertised it for sale and had so informed defendant, also informing the latter that the machine could not be operated until repairs were made, and had left his name and address with defendant and had requested the latter to permit any one to inspect the machine whom he might send around, defendant is not liable for the theft of the machine by one who presented a written permit from plaintiff to inspect and, under the pretext of inspecting it, stole'it, riding it away.</p>

<p>Interlocutory appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in the Branch Appellate Court.</p>

<p>1. Eminent domain, § 42*—when structure for use in connection with municipal bridge not additional servitude. A power plant placed by a city in a pit in the street for the purpose of operating a bascule or “jack-knife” bridge over a navigable river is not an additional servitude, but essentially a part of the bridge.</p> <p>2. Eminent domain, § 51*—when payment of compensation not condition precedent to exercise of power. Even though it is admitted that a proposed structure and change of grade in a street in connection with the erection of a municipal bridge over a navigable river will damage adjoining property, the ascertainment and payment of such damages is not a condition precedent where no part of the property is taken, irrespective of the hardship which may be entailed thereby.</p> <p>3. Eminent domain, § 40*—when remedy of owner of damaged property an action at law. The remedy of one whose property suffers consequential damage by a public improvement in a street is by an action at law.</p> <p>4. Municipal corporations, § 874*—when existence of street sufficiently shown. On a bill to enjoin the erection of structures in a street in connection with a bridge over a navigable river, the existence of a public street held sufficiently shown.</p> <p>5. Municipal corporations, § 883*—when erection of bridge connecting parts of street enjoined. On a bill by a property owner to enjoin a municipality from erecting a bridge and approach over a navigable river and connecting parts of a street, which is to be built in part on complainant’s property, defendant will be enjoined from erecting such structures until it has obtained the right to do so by condemnation or otherwise.</p> <p>Additional Opinion on Petition por Rehearing.</p> <p>Municipal corporations, § 883*—when access to property not destroyed by proposed improvement. Evidence on bill to enjoin erection of bridge by city, examined and held to show that the proposed improvement would not cut ofi all access to or egress from complainant’s property.</p>

<p>Appeal from the Circuit Court of Madison county; the Hon. W. E. Hadley, Judge, presiding. Heard in this court at the March term, 1915.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>1. Master and servant, § 120*—when superintendent of mill under no duty to install guards for machinery. A superintendent in charge of machinery, in a mill, and who is injured, does not incur a penalty under the Act of 1909 (J. & A. K 5386 et seq.), relating to the health and safety of, employees, for failure to install guards for machinery which he had not been directed by the master to place therein where the master was actively participating in and managing the business of the going concern, as the duty to install the machinery primarily lies upon the master.</p> <p>2. Master and servant, § 302a*—when assumed rislc by servant no defense. In an action to recover for the death df plaintiff's intestate while “doping” an unguarded pulley belt while it was in motion, the fact that deceased may have been negligent and assumed the risk of working at the machinery without guards does not relieve the employer from doing what is required of him by the Act of 1909 (J.i & A. If 5386 et seq.), relating to the health and safety of employees, or relieve him from the penalty of the withdrawal of the defenses of contributory negligence and assumed risk.</p> <p>3. Master and servant, § 430*—when defense of contributory negligence unavailable. The defense of contributory negligence of a servant is no defense to an action for injuries to an employee due to a violation of the statutory duty imposed by the Act of 1909 (J. & A. If 5386 et seq.), to guard machinery.</p> <p>4. Master and servant, § 302a*—how act relating to health and safety of employees construed. The Act of 1909 (J. & A. If 5386 et seq.), relating to the health and safety oí employees, is to be given the same construction as the Miners’ Act (J. & A. K 7475 et seq.), as to the defenses of assumed risk and contributory negligence.</p> <p>5. Mines and minerals, § 117*—when defense of assumption of rislc unavailable. Assumed risk is unavailable as a defense in a suit for damages caused by a wilful violation of the Miners’ Act (J. & A. If 7475 et seq.).</p> <p>6. Mines and minerals, § 125*—when contributory negligence no defense. Contributory negligence is unavailable as a defense in a suit for damages caused by a wilful violation of the Miners’ Act (J. & A. K7475 et seq.).</p> <p>7. Master and servant, § 706*—when question whether injured employee was such superintendent as to he deprived-.of benefits of aet relating to safety of employees is for jury. The fact that a mill superintendent was receiving wages and not only looking after machinery hut performing work which required him to pass near tho machinery which injured him is such evidence that he was an employee that a court cannot say as matter of law that he was at the time such a superintendent as would deprive him of the benefits of the act of 1909 (J. & A. If 5386 et seq.), relating to the health and safety of employees.</p> <p>8. Master and servant, § 706*—when question whether injured superintendent was an employee entitled to benefits of act for safety of employees is for jury. The question whether a mill superintendent who, when injured, is performing work as well as looking after machinery is an employee within the meaning of the Act of 1909 (J. & A. 1f 5386 et seq.) is a question of fact for the jury under the instructions of the court.</p> <p>9. Master and servant, § 171*—what does not constitute repairing of machinery. “Doping” pulley belts, in order to keep them from slipping, is not “repairing” them within the meaning of section 1 of the Act of 1909 (J. & A. j[ 5386), relating to the health and safety of employees, providing that “no repairs shall be made to the active mechanism or operative part of any machine when the machine is in motion.”</p> <p>10. Words and phrases, — word “repair” defined. The word “repair” means “to restore to a sound or good state after decay, injury, dilapidation or partial destruction.”</p> <p>11. Master and servant, § 716*—when question whether necessary to stop machine before doping belts for jury. In an action to recover for the death of plaintiff’s intestate as a result of injuries sustained while “doping” an unguarded pulley belt while it was in motion, it is a question of fact for the jury, under proper instructions, whether in the practical operation of the particular machinery it was necessary to stop the machine before applying the “dope.”</p> <p>12. Master and servant, § 158*—when necessary to guard machinery in mill where pulley belts “doped” in action. Under section 1 of the Act of 1909 (J. & A. If 5386 et seq.), requiring that “all dangerous places in or about * * * mills * * * near to which any employee is obliged to pass, or to be employed shall, where practicable, be properly inclosed, fenced or otherwise guarded,” where it is not necessary that machinery be stopped before applying “dope” to pulley belts to prevent their slipping, such machinery must be guarded or fenced so as to offer the least possible chance for injury to those operating it.</p> <p>13. Master and servant, § 501*—when failure of servant to stop machinery to dope belts no defense. In an action to recover for the death of plaintiff’s intestate as a result of injuries sustained while “doping” an unguarded pulley belt while it was in motion, an employer is not allowed to defend on the ground that deceased should have stopped the machinery before “doping” the belt, although section 1 of the Act of 1909 (J. & A. If 5386 et seq.), relating to the health and safety of employees, provides that “no repairs shall be made to the active mechanism or operative part of any machine when the machine is in motion.”</p> <p>14. Master and servant, § 795*—when instruction that if deceased is superintendent of mill no recovery could be had properly refused. In an action to recover for the death of plaintiff’s intestate as a result of injuries sustained while “doping” unguarded pulley belts while they were in motion, an instruction that if deceased was the head miller or superintendent of defendant’s mill he could not recover, is properly refused where his management is subject to the control of the operators of the mill and where it was also part of his duties to work in the mill as a miller, in which case deceased is not deprived of the benefit of the Act of 1909 (J. & A. jf 5386 et seq.), relating to the health and safety of employees.</p> <p>15. Master and servant, § 797*—when instruction on assumed rislc properly refused. In an action to recover for the death of plaintiff’s intestate as a result of injuries sustained while “doping” a pulley belt while it was in motion, an instruction presenting the question of assumed risk is properly refused, since such defense is taken away from the employer by the Act of 1909 (J. & A. If .5386 et seq.).</p> <p>16. Master and servant, § 800*—when instruction that if guards insufficient to protect deceased no recovery could be had properly refused. In an action to recover for the death of plaintiff’s intestate as a result of injuries sustained while “doping” an unguarded pulley belt while it was in motion, an instruction that if the guards mentioned in the instruction would have been insufficient to protect deceased while so engaged plaintiff could not recover is properly refused, such instruction practically informing the jury that they must find for defendant unless the guards would furnish absolute protection to those working around the machinery.</p> <p>17. Master and servant, § 130*—when master may not delegate duties. The duties imposed, by the Act of 1909 (J. & A. 1f 5386 et seq.), relating to the health and safety of employees and the guarding of machinery, cannot be delegated by the employer.</p> <p>18. Master and servant, § 800*—when instruction that danger from machinery must be entirely eliminated properly refused. In an action to recover for the death of plaintiff’s intestate as a result of injuries sustained while “doping” an unguarded-pulley belt while it was in motion, an instruction requiring that danger from the machinery be entirely eliminated is properly refused under the Act of 1909 (J. & A. 1Í 5386 et seq.), relating to the health and safety of employees, in that such instruction ignores the question of the practical operation of the machinery.</p> <p>19. Masteb and servant, § 800*—when instruction defining meaning of “dangerous machinery” properly refused. In an action to recover for the death of plaintiff’s intestate as a result of injuries sustained while “doping” an unguarded pulley belt while it was in motion, instruction attempting to define the meaning of “dangerous machinery,” as used in the law, and also calling the attention of the jury to the question of deceased’s having worked around the machinery for five years, is erroneous and is properly refused.</p> <p>20. Instructions, § 81*—when instruction emphasising facts properly refused. An instruction calling attention to particular facts is erroneous, and is properly refused.</p>

<p>Abstract of the Decision.</p> <p>■ 1. Contracts, § 5*—what constitutes collateral agreement. A contract to assume an incumbrance on land purchased is not one of the essential parts of a deed of conveyance, and is in fact extraneous and collateral to it.</p> <p>2. Mortgages, § 227*—when grantee not bound by recital in deed to pay existing incumbrances. A recital in a deed that the grantee assumes and agrees to pay existing incumbrances on the property conveyed is not, in and of itself, sufficient to fix the liability to pay without proof that such grantee assented to the clause recited.</p> <p>3. Estoppel, § 21*—when grantee not estopped by recital of deed. A grantee is not estopped by the recital of a deed which he does not execute.</p> <p>4. Deeds, § 29*—when undertaking in deed not enforceable. An undertaking by a grantee recited in a deed is collateral to it, and if the promise fail or be shown to have been the result of fraud or mistake, the undertaking will not be enforced.</p> <p>5. Mortgages, § 228*—when fraud defense to agreement to assume incumbrances. Where there is a recital in a deed that the grantee assumes and agrees to pay certain mortgages on the property conveyed and the grantee discovers fraud in the transaction, he is not limited to recoupment or to returning the property and suing for a return of the consideration, but may make use of the fraud to defeat an action by the grantor for breach of the contract.</p> <p>6. Contracts, § 1*—what constitutes simple contract. An undertaking of a grantee recited in a deed to assume and pay incumbrances on the property purchased is a simple contract.</p> <p>7. Contracts, § 7*—when fraud a defense. Fraud is a good defense to an action on a simple contract.</p> <p>8. Vendor and purchaser, § 35*—when fraud fatal to title. Fraud practiced by the party seeking the remedy upon him against whom it is sought, and not that which is the subject-matter of the action or claim, is fatal to his title.</p> <p>9. Principal and agent, § 155*—when principal may not receive benefit of unauthorized act of agent. A principal cannot receive the benefit of unauthorized acts of his agent which are in fact fraudulent.</p> <p>10. Principal and agent, § 131*—when principal liable for benefits due to unauthorized acts of agent. A principal who has actually received the benefit of money procured by the unauthorized acts of his agent will be liable in the amount he has received the benefit of.</p> <p>11. Fraud, § 115*—when evidence sufficient to sustain finding that agreement by grantee to assume mortgages was fraudulently procured. In an action by a grantor to recover for breach of an agreement recited in a deed whereby the grantee assumed certain mortgages on the property conveyed, where the defense to the action was fraud and where the evidence was conflicting, evidence examined and held that a finding by the jury that the agreement was procured by a fraudulent scheme concocted by the grantor and his agent was not manifestly wrong.</p> <p>12. Mortgages, § 226*—when evidence sufficient to sustain finding that grantee did not intentionally assent to agreement to assume incumbrances. In an action by a grantor to recover for breach of an agreement recited in a deed whereby the grantee assumed certain mortgages on the property conveyed, evidence examined and held to warrant the jury in finding that defendant never knowingly and intentionally assented to the contract recited.</p> <p>13. Fraud, § 133*—when instructions on fraud as defense to contract not erroneous. Instructions framed on the theory that the presence of actionable fraud inducing damage to any extent is a complete defense to an action on a simple contract are not erroneous.</p> <p>14. Instructions, § 118*—when instruction on effect of fraudulent representations by agent of vendor in procuring agreement to assume incumbrances not erroneous. In an action to recover for breach of an agreement recited in a deed whereby the grantee assumed certain mortgages on the property conveyed, where the defense was that the agreement was procured by a fraudulent scheme concocted by plaintiff and his agent, an instruction relative to the effect of the fraudulent representations of plaintiff’s agent in pursuance of the scheme is not erroneous although there is no direct evidence that plaintiff had anything to do with that portion of the scheme to which the representations related, if there is evidence that plaintiff and his agent were co-operating generally in the transaction by which plaintiff was defrauded.</p>

<p>Appeal from the Circuit Court of Pope county; the Hon. Warren W. Duncan, Judge, presiding. Heard in this court at the October term, 1915.</p>

<p>Appeal from the City Court of East St. Louis; the Hon. William M. Vandeventer, Judge, presiding. Heard in this court at the October term, 1915.</p>

<p>1. Wills, § 228*—when complete instrument overrides particular provisions. As a general rule no section or provision of a will can control against the manifest intent of the complete instrument.</p> <p>2. Wills, § 226*—when construction depends upon intention of testator gathered from entire instrument. The construction of a will depends upon the intention of the testator to be ascertained from a full view of everything contained in the will, giving just weight and operation to each clause and word employed, unless there is some invincible repugnance or some portion of it is absolutely unintelligible.</p> <p>3. Wills, § 244*—who constitute heirs and descendents living at time of distribution of estate. A provision in a will that a certain distribution of the profits arising from his property be made among his “heirs and descendents living” at the time of the distribution means a distribution between the heirs who are directly descended from him who are living at such time, and does not include the husband and executor of a deceased daughter, although in another clause of the will the testator devises to such daughter an undivided portion of his estate without condition.</p> <p>4. Wills, § 249*—when general provision in favor of child controlled by specific provision for distribution. Where testator made in his will a life provision for his wife and devised without condition an undivided portion of the estate, subject to the provision for the wife, to a daughter, who predeceased the testator, leaving a husband, who was her devisee and executor, but no children, and in a later clause of the will testator provided that under certain conditions a distribution of certain royalties derived from the estate devised might be made in the lifetime of the wife, and that any distribution made previous to the death of the said wife should be between his heirs and descendents living in pursuance of the statute of the State of Illinois at the date of this will, held that the general provision in favor of the daughter was controlled by the specific provision as to the distribution, so that the devisee and executor of the deceased daughter had no interest or distributive share in such distribution.</p> <p>5. Wills, § 249*—when general provisions controlled by specific provisions. In constructing wills, general provisions must give way to those which are specific.</p>